Mr.Sunilkumar M.Tapadia, v. The State Rep By Its
IN THE HIGH COURT OF JUDICATURE AT MADRA4S
DATED : 25.10.2018
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH Crl.O.P.No.21171 of 2018 Sunilkumar M.Tapadia ... Petitioner/Pw-5 Defacto Complaint Vs The State rep by its The Inspector of Police Central Crime Branch Egmore Chennai Respondent No.1/Complaint Nathmal Jain ... Respondent no.2/Sole Accused Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. to issue suitable directions for an early disposal of the case in C.C.No.6498/2016 on the file of the Special Court for trial of CCB, CBCID cases, Allikulam, at Chennai. For Petitioner Mr.A.Raghunathan Senior Counsel for Mr.R.Sathishkumar For R1 Mrs.M.Prabhavathi Additional Public Prosecutor
ORDER
This petitioner has been filed to issue suitable directions for an early disposal of the case in C.C.No.6498/2016 on the file of the Special Court for trial of CCB, CBCID cases, Allikulam, at Chennai.
2. The de facto complainant who decided to take recourse to law in the year 1997 is still in the dark tunnel without any sight of light of justice, thanks to dubious tactics adopted by the accused to keep the prosecution alive indefinitely. By this petition, the de facto complainant has approached this Court for the third time for a direction to the trial Court to complete the trial within a time period. Earlier in Crl.O.P.No.1483 of 2015, this Court had rued as follows in the order dated 07.07.2015:
"5.It is seen that the accused has deliberately not cross examined all the prosecution witnesses and after cross
examination under Section 313 Cr.P.C. he has filed an application under Section 311 Cr.P.C. for re-calling the witnesses. The Hon'ble Supreme Court has deprecated this practice in several cases and now the Hon'ble Supreme Court has held that witness who examined in chief should have to be cross examined on the same day. For the fault of the accused, in not cross examining the witness in time, the prosecution cannot suffer. The accused should suffer the consequences of his action.
6.Under such circumstances, if the Trial Court is not able to secure the presence of PW1, despite reasonable efforts, the Trial Court shall proceed with the trial and the accused cannot plead prejudice.
7.The Trial Court is directed to complete the trial within a period of four months from the date of receipt of a copy of this order. This Criminal Original Petition is closed with the above direction."
3. Since nothing happened thereafter, the de facto complainant is once again before this Court with the same prayer. The learned Magistrate has sent a report dated 07.09.2018 giving the reasons for the delay in the disposal of the case. The principal reason is that the accused have filed petitions under Section 311 Cr.P.C. one after the other. This tactics came to the notice of the Supreme Court and has led to two judgments, viz.,Vinoth Kumar vs. State of Punjab [2015(1) MLJ (Crl) 288] and A.G. vs. Shiv Kumar Yadav [(2016) 2 SCC 402]. In Shiv Kumar Yadav (supra), the Supreme Court has clearly laid down that the power under Section 311 Cr.P.C. cannot be exercised on the mere asking of the accused.
In this case, the prosecution witnesses were examined a decade back and it is not known whether they are alive or whether they are in a position to come to the Court and subject themselves to crossexamination. Therefore, irrespective of the fact whether the Public Prosecutor files a counter or not, the trial Court is directed to deal with the Section 311 Cr.P.C. bearing in mind the law laid down in the aforesaid rulings. If the accused adopts dilatory tactics, the trial Court shall remand them to custody under Section 309 Cr.P.C. following the law laid down in State of Uttar Pradesh v. Shambunath Singh [JT 2001 (4) SC 319]. If any of the accused absconds, a fresh FIR can be registered under Section 229-A IPC. This Court directs the trial Court to complete the proceedings in C.C.No.
the Special Court for trial of CCB, CBCID cases, Allikulam, at Chennai within a period of six months from the date of receipt of a copy of this order.
Accordingly, this petition is ordered.
Sd/-/- Assistant Registrar(Co) //True Copy// Sub Assistant Registrar gms To 1 The Special Court for Trial of CCB CBCID CASES, Allikukalam, Chennai.
2.The Inspector of Police Central Crime Branch Egmore Chennai The Public Prosecutor High Court, Madras.
+1cc to Mr.R.Sathishkumar , Advocate SR.No. 73385 Crl.O.P.No.21171 of 2018 ASK(16/11/2018)