Madras High Court
S.Ajithamalajeevan vs State Of Tamil Nadu Through on 12 June, 2025
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.O.P.(MD)Nos.9840 and 9841 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.06.2025
CORAM
THE HON`BLE MR.JUSTICE B.PUGALENDHI
Crl.O.P.(MD)Nos.9840 and 9841 of 2025
and
Crl.M.P.(MD)Nos.7263 and 7264 of 2025
S.Ajithamalajeevan ... Petitioner in
both Crl.O.Ps.
versus
State of Tamil Nadu through
The Inspector of Police,
Vedasandur Police Station,
Dindigul District. ... Respondent in
both Crl.O.Ps.
Prayer in Crl.O.P.(MD)No.9840 of 2025: Petition filed under Section
528 of Bharatiya Nagarik Suraksha Sanhita, 2023, to set aside the order
made in Cr.M.P.No.169 of 2025 in Spl.S.C.No.35 of 2024 dated
24.03.2025 passed by the Special Court for exclusive trial of cases under
POCSO Act, Dindigul and allow this petition.
Prayer in Crl.O.P.(MD)No.9841 of 2025: Petition filed under Section
528 of Bharatiya Nagarik Suraksha Sanhita, 2023, to set aside the order
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
made in Cr.M.P.No.1579 of 2024 in Spl.S.C.No.35 of 2024 dated
19.10.2024 passed by the Special Court for exclsive trial of cases under
POCSO Act, Dindigul and allow this petition.
For Petitioner in
both W.Ps. : Mr.R.Aravindraj
For Respondent : Mr.A.S.Abul Kalaam Azad,
in both W.Ps. Government Advocate (Crl. Side)
COMMON ORDER
Crl.O.P.(MD)No.9840 of 2025 has been filed challenging the order
dated 24.03.2025 passed in Cr.M.P.No.169 of 2025 in Spl.S.C.No.35 of
2024 on the file of the Special Court for Exclusive Trial of cases under
POCSO Act, Dindigul.
2. Crl.O.P.(MD)No.9841 of 2025 has been filed challenging the
order dated 19.10.2024 passed in Cr.M.P.No.1579 of 2024 in Spl.S.C.No.
35 of 2024 on the file of the Special Court for Exclusive Trial of cases
under POCSO Act, Dindigul.
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
3. The petitioner is an accused in Spl.S.C.No.35 of 2024. He is
facing charges for the offences under Sections 363 and 376(3) IPC and
Section 5(i) r/w. Section 6 of POCSO Act 2012. In this case, the trial has
commenced and twelve witnesses have already been examined. While
so, the petitioner has filed Cr.M.P.No1579 of 2024 to re-call the
witnesses P.W.1 to P.W.4 and Cr.M.P.No.169 of 2025 to re-call the
witnesses P.W.5 to P.W.12. According to the petitioner, the reasonsing
for re-calling the above witnesses is that certain important questions have
been ommitted to be asked by the earlier counsel and therefore, the
present petitions had been filed by the new counsel. The trial Court has
permitted the petitioner to re-call P.W.3 and P.W.4 as they have not been
cross examined by the petitioner. With regard to other witnesses, the trial
Court has rejected the petitions that they have already been cross
examined on behalf of the accused/petitioner and therefore, there is no
necessity to re-call the witnesses. Challenging the same, the present
petitions have been filed.
4. The learned Government Advocate (Crl. Side) opposed that
P.W.2 in this case is 15 years old girl and P.W.1 and P.W.3 are her parents.
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
With regard to P.W.3 and P.W.4, they have not been cross examined.
Therefore, the trial Court has permitted them to be cross examined.
However, with regard to all other witnesses, the petitioner has already
cross examined them. Therefore, re-calling the witnesses again for the
purpose of further cross examination would certainly amount to a
harassment to the witnesses in this nature of offence.
5. The learned Government Advocate (Crl. Side) has also relied on
the Judgment of the Hon'ble Supreme Court in Rajaram Prasad Yadav
vs. State of Bihar and another, reported in CDJ 2013 SC 561 and
submits that while dealing with an application under Section 311 Cr.P.C.,
the Courts must act in a judicial manner and also with care and caution.
The Hon'ble Supreme Court has already issued certain guidelines in
Sudevanand vs. State through CBI reported in 2012 3 SCC 387, as
under:
“23. From a conspectus consideration of the above
decisions, while dealing with an application under Section
311 Cr.P.C. read along with Section 138 of the Evidence
Act, we feel the following principles will have to be borne
in mind by the Courts:
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
a) Whether the Court is right in thinking that the
new evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
b) The exercise of the widest discretionary power
under Section 311 Cr.P.C. should ensure that the judgment
should not be rendered on inchoate, inconclusive
speculative presentation of facts, as thereby the ends of
justice would be defeated.
c) If evidence of any witness appears to the Court to
be essential to the just decision of the case, it is the power
of the Court to summon and examine or recall and re-
examine any such person.
d) The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding out
the truth or obtaining proper proof for such facts, which
will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed
as filling in a lacuna in a prosecution case, unless the facts
and circumstances of the case make it apparent that the
exercise of power by the Court would result in causing
serious prejudice to the accused, resulting in miscarriage
of justice.
f) The wide discretionary power should be
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to recall
him for further examination in order to arrive at a just
decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth and to
render a just decision.
i) The Court arrives at the conclusion that
additional evidence is necessary, not because it would be
impossible to pronounce the judgment without it, but
because there would be a failure of justice without such
evidence being considered.
j) Exigency of the situation, fair play and good
sense should be the safe guard, while exercising the
discretion. The Court should bear in mind that no party in
a trial can be foreclosed from correcting errors and that if
proper evidence was not adduced or a relevant material
was not brought on record due to any inadvertence, the
Court should be magnanimous in permitting such
mistakes to be rectified.
k) The Court should be conscious of the position
that after all the trial is basically for the prisoners and the
Court should afford an opportunity to them in the fairest
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
manner possible. In that parity of reasoning, it would be
safe to err in favour of the accused getting an opportunity
rather than protecting the prosecution against possible
prejudice at the cost of the accused. The Court should
bear in mind that improper or capricious exercise of such
a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a
disguise or to change the nature of the case against any of
the party.
m) The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would be
germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in order to meet
the ends of justice for strong and valid reasons and the
same must be exercised with care, caution and
circumspection. The Court should bear in mind that fair
trial entails the interest of the accused, the victim and the
society and, therefore, the grant of fair and proper
opportunities to the persons concerned, must be ensured
being a constitutional goal, as well as a human right.”
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
6. This Court considered the rival submissions made and perused
the materials placed on record.
7. The petitioner is an accused in Spl.S.C.No.35of 2024 and he is
facing the charges for the offences under Sections 363, 376(3) IPC and
Section 5(1) r/w. Section 6 of POCSO Act. The prosecution has
examined 12 witnesses. Except P.W.3 and 4, the petitioner has examined
all other witnesses. The petitioner has filed two petitions, i.e. Cr.M.P.No.
1579 of 2025 to re-call P.W.1 to P.W.4 and Cr.M.P.No.169 of 2025 to
re-call P.W.8 to P.w.12. In Cr.M.P.No.1579 of 2024, the trial Court has
permitted the petitioner to re-call P.W.3 and P.W.4 as they have not been
cross examined by the petitioner. With regard to other witnesses, the trial
Court has rejected the petitions that they have already been cross
examined.
8. The learned counsel for the petitioner has also admitted that the
petitioner has examined all other witnesses, however, he changed his
counsel and the new counsel has insisted that all these witnesses have to
be cross examined on certain questions, which have been ommitted to be
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
asked by the previous counsel.
9. Witnesses cannot be re-called again and again and that too in the
case of POCSO Act by changing a counsel. Since the petitioner has not
offered any proper grounds for re-calling the witnesses, this Court is not
inclined to entertain these petitions.
10. Accordingly, both the Criminal Original Petitions are
dismissed. Consequently, connected miscellaneous petitions are closed.
12.06.2025
Index : Yes / No.
Internet : Yes / No.
NCC : Yes / No.
ogy
To
1. The Inspector of Police,
Vedasandur Police Station,
Dindigul District.
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)Nos.9840 and 9841 of 2025
B.PUGALENDHI, J.
ogy
Crl.O.P.(MD)Nos.9840 and 9841 of 2025
12.06.2025
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