Madras High Court
J.Paul Davis vs The State on 27 September, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
Crl.OP.No.18682 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.08.2024
Pronounced on : 27.09.2024
CORAM : JUSTICE N.SESHASAYEE
Crl.OP.No.18682 of 2024
J.Paul Davis .... Petitioner / Accused
Vs
The State
Rep by Inspector of Police
Vigilance and Anti-Corruption
CC-1, Chennai. .... Respondent
/Complainant
Prayer : Criminal Original Petition filed under Section 447 r/w. 528 of BNSS
praying to withdraw Special Case No.07 of 2015 on the file of the learned
Chief Judicial Magistrate, Chengalpet and transfer it to any other court
competent to try this in any other nearest district.
For Appellant : Mr.M.Ravi
for Mr.P.Aravindan
For Respondent : Dr.C.E.Pratap
Government Advocate [Crl. Side]
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1/8
Crl.OP.No.18682 of 2024
ORDER
This petition is filed for transfer of Special Case No.07 of 2015 from the file
of the learned Chief Judicial Magistrate, Chengalpet.
2.1 The petitioner herein is arrayed as the sole accused in the case, and he
seeks transfer of the case from the Court of the learned Chief Judicial
Magistrate, Chengalpet, to some other Court on the ground that the learned
Chief Judicial Magistrate, Chengalpet has taken a position not to grant time to
the petitioner on a day when the case was posted for arguments even though
the court was informed that the petitioner's counsel had undergone
ophthalmologic surgery. The petition makes the following allegations:
a) On 22.07.2024, both the accused and his counsel were absent. The
accused was on an unavoidable official duty and the counsel
Thiru.Kanagaraj was not able to attend the court due to his eye
operation.
b) On the said date, one Mr.Rahothaman, junior to Mr.Kanagaraj,
representing the case of the accused, informed the Magistrate that
his senior had undergone eye operation and requested the matter to
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be posted on a later date. However, the said request was not
conceded to by the Magistrate.
c) The matter was posted again the next day, i.e on 23.07.2024, and
the accused appeared before the Magistrate and recited the same
pleas as were stated the day before. The Magistrate asked the
accused to change his advocate and posted the matter on
25.07.2024.
d) On 25.07.2024, the accused attempted to file a petition u/s. 348 of
BNSS to recall PW2 who was cross-examined by his counsel on
16.10.2019. The Magistrate did not receive the said petition and
asked the accused to appoint another counsel either by himself or by
seeking Legal Aid. She warned him that if he failed to do so, she
would pass her usual orders.
2.2 The petitioner appears to have entertained an idea that the learned trial
Judge possibly has entertained a prejudice against the petitioner. In his
additional affidavit he alleged that both the present Crl.O.P. filed before this
Court and Spl.C.C.No.7 of 2015 on the file of Chief Judicial Magistrate,
Court, Chengalpet came up for hearing on the same day i.e., 05.08.2024. On
that day (i.e.,05.08.2024), when the petitioner had brought it to the notice of
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the learned Chief Judicial Magistrate about the filing of Crl.O.P. before this
Court and that it was subsequently adjourned to 12.08.2024, the learned
Magistrate had expressed her anguish in filing the present Crl.O.P. and
posted the case in Spl.C.C. No.7 of 2015 to 13.08.2024. Hence the petitioner
was constrained to engage another counsel to represent him, but such other
counsel who was so engaged also need time to prepare.
3. The learned Chief Judicial Magistrate, Chengalpet, was required to make
available the entire status of this case, and the same was made available. The
essential points it discloses are:
a) That on 22.07.2024, the petitioner did not inform the Court that his
counsel had underwent a ophthalmologic surgery. He had merely
filed a petition under Section 355 BNSS (equivalent to Section 317
Cr.P.C) stating that the petitioner was not present in the Court due
to his ill health. Therefore, the case was posted to next day i.e.,
23.07.2024. Since the case has been pending arguments from
18.06.2024, it was taken up for final arguments for the defence,
since the prosecution had filed its written arguments even on
18.06.2024.
b) Whenever the Court posted the case for arguments, the petitioner
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would come out with one application or the other. Indeed on
11.06.2024, he came up with an application to recall prosecution
witnesses on 18.06.2024, and the same was allowed by the Court;
c) It is in this circumstances on 23.07.2024, the petitioner had
informed the Court that he had engaged another counsel on his
behalf. Therefore, the Court adjourned the matter to 25.07.2024,
but on 25.07.2024, the petitioner had appeared in the Court and
informed that he had not engaged any counsel yet, but still sought
for an adjournment.
d) On 25.07.2024, the petitioner did not file any petition under Section
348 of BNSS to recall P.W.2. Indeed, P.W.2 had turned hostile
during trial.
e) The case has been pending for more than nine years and there is a
necessity to ensure that the case is disposed of at the earliest.
4.1 The narration of facts as disclosed in the status report of the learned Chief
Judicial Magistrate disappoints this Court. It might be that on 22.07.2024,
the counsel for the petitioner before the trial Court might have undergone a
ophthalmology surgery but his overall conduct in participating in the trial
does not impress this Court.
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4.2 Now it is more than 45 days since 22.07.2024, and the counsel on record
for the petitioner before the trial Court might have fully recovered from the
effects of ophthalmologic surgery. In case even if he had engaged another
counsel, still the newly appointed counsel required to be given reasonable
time to go through the papers.
4.3 It is unfortunate that the petitioner shifts the blame on the Court when he
himself is not beyond blames in participating in the trial. However, every
case has to be decided on its merit and the leaned trial Judge is mature
enough given her experience as a judicial officer, not to build prejudices
against the accused person on the basis of the presumption of the petitioner or
his counsel (which the petitioner had disclosed in the petition) and not to
reflect it in her judgment.
5. In conclusion, this Court does not find merit and the petition is dismissed
accordingly.
27.09.2024
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
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ds
To:
1.The Chief Judicial Magistrate
Chengalpet.
2.The Public Prosecutor
High Court, Madras.
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N.SESHASAYEE.J.,
ds
Pre-delivery order
27.09.2024
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