Madras High Court
Nilamangai vs R.Gnanaprakash on 25 September, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.13065 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.09.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.13065 of 2024
and
Crl.M.P.No.7980 of 2024
Nilamangai ... Petitioner
Vs.
1.R.Gnanaprakash
2.State Rep. by
The Inspector of Police,
W-26, All Women Police Station,
Ashok Nagar, Chennai – 600 083. ... Respondents
Prayer: Criminal Original Petition is filed under Section 482 of the
Code of Criminal Procedure, praying to allow the above Criminal
Original Petition by setting aside the order dated 05.03.2024 passed in
Crl.M.P.No.4828 of 2024 in Spl.S.C.No.15 of 2022 on the file of
Sessions Judge, Additional Special Court for Exclusive Trial of Cases
Under POCSO Act, (Mahalir Neethimandram) Allikulam, Chennai.
For Petitioner : Mr.S.Sriram
For 1st Respondent : Mr.A.V.Arun
For 2nd Respondent : Mr.K.M.D.Muhilan,
Government Advocate (Crl.Side)
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1/8
Crl.O.P.No.13065 of 2024
ORDER
The petitioner herein is an accused for the offence under Section
384, 506(ii) IPC and Section 6 r/w. 5(i) of the POCSO Act, 2012. After
examination of eight witnesses on the side of the prosecution he has filed
an application to recall the defacto complainant PW1 mother of the
minor victim and PW2 minor victim.
2. The trial Court has allowed the application under Section 311
Cr.P.C recording the following reasons:-
5. Considering the above contention it is noted that
the petitioner is charged for serious offences. P.W.1 is the
mother of the victim child. P.W.2 is the victim child. At
present P.W.2 has complete 18 years of age. Both
witnesses are not cross examined on the side of the
accused. No inconvenience will be caused in recalling the
witness. They are the key witnesses. Deciding the case
without testing the veracity of said witnesses by way of
cross-examination may cause miscarriage of justice. Also
it may not be proper to decide the case without giving an
opportunity for cross examining the key witnessed.
Moreover, the cross-examination of P.Ws.1 and 2 is
necessary to enable this Court to arrive a just decision.
Hence, considering the reason given on the side of the
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petitioner/ accused that due to illness of his Advocate the
witness could not been cross examined and in the interest
of justice this court is inclined to allow this petition,
however on suitable cost.
3. The defacto complainant being aggrieved by the order passed by
the trial Court recalling the witnesses is before this Court challenging the
said order.
4. The learned counsel appearing for the petitioner states that the
witnesses PW1 and PW2 were examined in chief on 18.02.2023. On the
same day, the accused did not cross-examine the witnesses and sought
for adjournment stating that the counsel for the accused is engaged
elsewhere. Citing the judgments of the Hon'ble Supreme Court in
Vinoth Kumar Vs. Punjab State and the judgment in Rajesh Yadav and
others Vs. Uttar Pradesh State, the trial Court had refused adjournment
for cross-examination and closed the evidence of PW1 and PW2.
Thereafter, remaining witnesses PW3 to PW8 were examined on the
subsequent hearings. Those days the accused has cross-examined the
witnesses on the same day. Thereafter, the accused has filed an
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application to transfer the case from the Sessions Court to Juvenile
Justice Court stating that he is a minor. But, the same was dismissed.
Thereafter, the present application was filed under Section 311 Cr.P.C to
recall the witnesses without citing any reason only to harass the
petitioner and her daughter who is the victim of the crime and hence the
order is to be set aside.
5. The learned counsel appearing for the petitioner would further
submit that the reasons assigned by the trial Court to recall the witnesses
is very cryptic and contrary to the judgments of the the Hon'ble Supreme
Court which the learned Judge was aware and recorded the same when
adjournment to cross-examine the witnesses was sought by the accused
person.
6. Per contra the learned counsel appearing for the respondent/
accused would submit that the right of an accused cannot be curtailed on
technicalities. The witnesses PW1 and PW2 who had spoken about
certain facts, which are to be contradicted by their own statement made
earlier and if it is not contradicted, it will be highly prejudiced to the
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accused. Further citing the judgment of the Hon'ble Supreme Court in
Satbir Singh Vs. State of Haryana and others reported in 2023 SCC
OnLine SC 1086, the learned counsel submitted that the power under
Section 311 Cr.P.C should be exercised by the Court to arrive at a just
decision of the case. In this case the Judicial Magistrate has applied his
mind, considered the merits of the case and though fit that cross-
examination of PW1 and PW2 is required to arrive at a just decision.
The said finding of the trial Court cannot be faulted. In any event the
right of accused to cross-examined the witnesses on condition of
payment of costs cannot be curtailed.
7. This Court after considering the rival submissions and perusing
the records as well as the dictum of the Hon'ble Supreme Court in the
cases of minor victim being recalled again and again by the accused
person and subjecting her to repeated turmoil and torture finds that the
trial Court's order to recall PW2, the victim is unjust and has to be
declined. As far as PW1 is concerned she is being the mother of the
victim and the defacto complainant and this Court is not inclined to
interfere with the order of the trial Court regarding PW1.
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8. Therefore, this Criminal Original Petition is partly allowed. The
order of the trial Court in so far as recalling PW2 is set aside. The
accused/ respondent is directed to pay costs of Rs.1,000/- on or before
next hearing date and on such deposit, PW1 be summoned to appear
before the trial Court and subject herself for cross-examination.
Consequently, the connected miscellaneous petition is closed.
25.09.2024
Index : Yes/No
Neutral Citation : Yes/No
dsa
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To
1. The Inspector of Police,
W-26, All Women Police Station,
Ashok Nagar, Chennai – 600 083.
2.The Public Prosecutor,
High Court of Madras,
Chennai.
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Dr.G.JAYACHANDRAN,J.
dsa
25.09.2024
https://www.mhc.tn.gov.in/judis
