Madras High Court
Rajesh vs The Sub Inspector Of Police on 7 February, 2025
Crl.O.P.(MD)No.2403 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.02.2025
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
Crl.O.P.(MD)No.2403 of 2025
Rajesh .. Petitioner
Vs.
The Sub Inspector of Police
Pudukadai Police Station
Kanyakumari District .. Respondent
PRAYER : Criminal Original Petition filed under Section 528 of BNSS,
to call for the record and set aside the order dated 08.01.2025 made in
Cr.M.P.No.390 of 2024 in S.C. No.3 of 2020 on the file of the Fast Track
Mahila Court, Nagercoil Camp at Kanyakumari.
For Petitioner : Mr.A.Vasimalai
For Respondent : Mr.M.Sakthi Kumar
Government Advocate(Crl.Side)
ORDER
This Criminal Original Petition has been filed to call for the records
and set aside the order dated 08.01.2025 made in Cr.M.P.No.390 of 2024
in S.C. No.3 of 2020 on the file of the Fast Track Mahila Court, Nagercoil
Camp at Kanyakumari.
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2. The learned counsel appearing for the petitioner would submit
that the petitioner is the first accused in the main case. According to the
prosecution on 11.10.2018 at about 14.15 hrs when the victim was alone
in her house the accused trespassed into the house, at that time the victim
asked the accused the repair the TV, using that situation he committed
rape on her. Thereafter the victim had committed suicide. Hence the
present First Information Report has been registered and after
investigation charge sheet was filed and the same was taken on file in S.C.
No. 3 of 2020 by the Fast Track Mahila Court, Nagercoil Camp at
Kuzhithurai for the offences under Sections 450,376,306, 212 r/w.34 of
IPC. A2 and A3 already filed a petition before this Court in Crl.O.P(MD)
No.6275 of 2019 and Crl.M.P(MD) No.4146 of 2019 to quash the case
against A2 and A3 and the same was allowed. Now the case is pending
before Fast Track Mahila Court, Nagercoil Camp at Kuzhithurai and all
the prosecution witnesses were examined and the case stands posted for
arguments after examining the accused under Section 313(1)(b)of Cr.P.C.,
The prosecution also argued the matter on 09.10.2024 and the case stands
posted for defence side arguments on 16.10.2024 and thereafter the case
was posted for judgment on 27.11.2024. In the meantime the prosecution
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filed petition to examine the learned Judicial Magistrate No.III, Nagercoil
who recorded the dying declaration of the deceased as prosecution witness
and the same was also allowed. Already all the witnesses were examined
and the case stands posted for judgment. At this stage the petition was
filed by the prosecution to fill up the lacuna but the trial Court failed to
consider the same and erroneously allowed the petition, great prejudice
will be caused to the accused, hence he has filed the present petition.
3. The learned Government Advocate(Crl.Side) for the respondent
would submit that the petitioner is the first accused in this case and already
trial was over and the case stands posted for judgment. However, now
prosecution noticed that the Magistrate who recorded the dying
declaration of the victim was not examined as one of the witness by the
prosecution. Therefore inorder to elicit truth and to ensure fair trial, they
filed petition to examine the said Magistrate as one of the witness who is
the material witness to prove the prosecution case. The trial Court also
after elaborate discussion in order to give a fair chance to the prosecution
allowed the petition, therefore the present petition is liable to be
dismissed.
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4. Heard both sides and perused the materials available on record.
5. In this case it is an admitted fact that already trial was completed
and after hearing arguments the case is posted for judgments. At this stage,
the prosecution has filed a petition to examine the learned Magistrate who
recorded dying declaration of the victim as prosecution witness.
According to the prosecution due to inadvertence the Magistrate who
recorded the dying declaration of the victim was not examined as witness.
The said witness is a material witness to prove the dying declaration and
therefore examination of the said witness is very essential to the case.
6. It is an admitted case that the learned Magistrate was cited as list
witness but the prosecution failed to examine him as one of the witness.
Therefore the prosecution has filed petition under Section 348 of BNSS.
In this case,the learned Magistrate was cited as L.W.34 in the charge sheet
to establish that he recorded the statement of the deceased prior to her
death but he was not examined as witness. Therefore the prosecution has
filed a petition to examine the said Magistrate who recorded the statement
of the victim as witness in this case. As per Section 348 of BNSS the
Court has power to examine witnesses at any stage. The learned
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Magistrate has passed an elaborate and reasoned order after referring the
judgments of the Hon'ble Supreme Court. The Hon'ble Supreme Court as
well as this Court has already passed so many judgments that the Court at
any stage of any inquiry, trial or other proceedings, summon any person
as witness or examine any person in attendance, though not summoned as
witness or recall and re-examine any person already examined, therefore
the order passed by the learned Sessions Judge is a well reasoned order
and there is no any illegality or infirmity in the order passed by the learned
Sessions Judge. By examining the Magistrate who recorded the statement
of the victim prior to her death no prejudice would be caused to the
accused and if the witness is not examined great prejudice would be
caused to the prosecution. Therefore the order of trial Court does not
warrant interference. In view of the said discussion this Court is of the
opinion that the present petition has no merits and deserves to be
dismissed.
7. Accordingly the Criminal Original Petition stands dismissed.
07.02.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
aav
https://www.mhc.tn.gov.in/judis
To
1. The Sub Inspector of Police
Pudukadai Police Station
Kanyakumari District
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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P.DHANABAL,J.
aav
07.02.2025
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