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Madras High CourtCRL OP/24337/2017ordered

Vazhuthanappillil Chacko Benny v. The Union Of India

2018-06-26Honourable Mr Justice P. N. Prakash5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.06.2018 C O R A M THE HONOURABLE Mr.JUSTICE P.N.PRAKASH Crl.O.P.No.24337 of 2017 and CRL.M.P.No.14067 of 2017 Vazhuthanappillil Chacko Benny S/o.Chacko ... Petitioner Vs.

1.The Union of India Rep. by its Secretary, Department of Justice, New Delhi-110 001.

2.The State of Tamil Nadu, rep. by the Home Secretary, Department of law and Justice, Fort St. George, Chennai.

3.The Inspector of Police, Crime Branch Criminal Investigation Department, (CB-CID Nilagiri Unit) Udhagamandalam, Nilgiri District.

4. Advocate P.V.Ravi Chandran Special Public Prosecutor, Crime Branch Criminal Investigation Department, (CB-CID Nilagiri Unit), 294, New Addl. Law Chambers, High Court Buildings, Netaji Subhas Chandra Bose Road, Chennai-600 095.

5.The Law Commission of India, Lok Nayak Bhavan, 'B' Wing, 2nd & 4th Floor, Khan Market, New Delhi-110 003.

6.Sasi Thomas, S/o. Thomas 7.Joju Thomas S/o.Thomas

8.Jose Paul, S/o.Stansilaus ... Respondents Criminal Original Petition has been filed under Section 482 of Cr.P.C to set aside the order dated 04.01.2016 in C.M.P.No.301 and 358 of 2015 in S.C.No.45 of 2004 on the file of the Court of the District and Sessions Judge of Magalir Neethi Mandram (Fast Track Mahila Court) of the Nilgiris at Udhagamandalam and scrape the evidence given by the petitioner as prosecution witness number 18 (PW-18) dated 16.03.2006 in S.C.No.45 of 2004 as ab initio null and void and non est in law and direct the Trial Court viz., The Court of the District and Sessions Judge of Magalir Neethi Mandram (Fast Track Mahila Court of the Nilgiris) At Udhagamandalam to take the evidence of the petitioner afresh under Section 311 of the Code of Criminal Procedure and take cognizance of the information and act upon it in accordance with law.

For Petitioner : Mr.T.Raja For Respondents: Ms.Kritika Kamal.P.

Government Advocate (Crl.Side) (RR1 to 3) Mr.P.V.Ravi Chandran, Spl.P.P. (R4) Ms.M.Karthikeyani (R6) Ms.Mayasri Baskar (R8)

O R D E R

This Criminal Original Petition has been filed to set aside the order dated 04.01.2016 in C.M.P.No.301 and 358 of 2015 in S.C.No.45 of 2004 on the file of the Court of the District and Sessions Judge of Magalir Neethi Mandram (Fast Track Mahila Court) of the Nilgiris at Udhagamandalam.

2. One Achamma died on 24.01.1998 under suspicious circumstances, pursuant to which, a case in Crime No.18 of 1998 under Section 174 Cr.P.C was registered by the Devarshola Police Station on 09.03.1998 and investigation was taken up by the police. Not satisfied with the investigation by the local police, Sasi Thomas-the brother of the deceased approached the High Court and sought CB-CID investigation. Accordingly, CB-CID investigation was ordered.

The CB-CID completed the investigation and filed a final report under Section 306 IPC against Jose Paul, the husband of the deceased and Dr.Therasa. Dr.Therasa was discharged from the prosecution on the orders of this Court in Crl.R.C.No.998 of 2016 and the order has been confirmed by the Supreme Court on 18.05.2017. The case was

committed to the Court of Sessions and the case is now pending as S.C.No.45 of 2004. The charges under Section 306 IPC were framed against Jose Paul and 47 witnesses have been examined upto 2006. Not satisfied with the investigation by the CB-CID, Sasi Thomas approached the Supreme Court for CBI investigation. The Supreme Court in Sasi Thomas Vs. State and others [(2006) 12 SCC 421] noted the fact that 47 witnesses have been examined by the trial Court, however, held as follows:- "36. We are also of the opinion that it is a fit case where the appellant should be permitted to engage a lawyer on his behalf who would assist the Public Prosecutor. We place on record that the learned counsel for the State assured us that the same shall not be objected to. We hope and trust that in the event the State is of the opinion that the prosecution should be conducted by a Public Prosecutor of repute and having sufficient experience, it would not hesitate to appoint one.

37. We would also direct the learned trial Judge, if any occasion arises therefor, to exercise his power under Section 311 of the Code of Criminal Procedure upon considering the facts and circumstances of this case.

38. We may reiterate that although it is not beyond the jurisdiction of this Court to direct further investigation by CBI as contradistinguished from reinvestigation at this stage, but we decline to do so keeping in view the fact that 47 witnesses including the appellant himself have already been examined and recourse thereto can be taken if during trial a case therefor is found to have been made out.

39. This appeal is disposed of with the aforementioned directions."

3. Thereafter, much water has flown under the bridge and totally, 58 witnesses have been examined till now. Under such circumstances, Sasi Thomas filed an application under Section 311 Cr.P.C., for recalling and examining one Vazhuthanappillil Chacko Benny, who was already examined as PW18 on the ground that Vazhuthanappillil Chacko Benny was prevented by the then Investigation Officer to speak the truth and that he is now willing to speak the truth. The trial Court did not entertain the petition on the ground that such petition should be filed only by the prosecutor in-charge of the case. The prosecutor in-charge of the case filed the said petition and

the same was numbered as Crl.M.P.No.358 of 2015 in S.C.No.45 of 2004. However, the said petition has been dismissed for nonprosecution by the Trial Court on 04.01.2016. Challenging the same, Vazhuthanappillil Chacko Benny has filed the present petition.

4. Heard the learned counsel for Vazhuthanappillil Chacko Benny (Petitioner), Sasi Thomas (R6) and Jose Paul (R8), the learned Government Advocate (Crl.Side) and Mr.P.V.Ravi Chandran, learned Special Public Prosecutor.

5. Under ordinary circumstances, this Court would not have entertained such a petition filed by a witness saying that in the year 2006, he had spoken lie and that he is willing to speak the truth in the year 2018. However, this Court is bound to obey the directions of the Supreme Court in paragraph 37 extracted above, wherein, it is stated that a witness can be recalled under Section 311 Cr.P.C. The fact remains that from 1998 till 2018, the parties have not let the trial Court to complete the trial. Though the learned counsel for the accused opposed the plea on the ground that Vazhuthanappillil Chacko Benny was examined in 2006 and on his mere asking, he cannot be permitted to be re-examined in the year 2018 and that would cause undue prejudice to the accused, it may be pertinent to note here that Vazhuthanappillil Chacko Benny was examined in chief and cross on 16.03.2006. The order of the Supreme Court in Sasi Thomas (supra) was passed on 24.11.2006. In paragraph 37 of the said judgment, the Supreme Court has permitted recalling of some witnesses.

6. The second prayer of Vazhuthanappillil Chacko Benny that his earlier evidence should be scrapped, cannot be accepted because every criminal Court is a Court of record though not in terms of Article 215 of the Constitution of India, but, in view of the power of a Criminal Court to punish a person and keep the record of the case in safe custody and any evidence so recorded during a trial cannot be scrapped in the light of the law laid down by the Supreme Cort in Satyajit Banerjee & Others Vs. State of West Bengal and others [(2005) 1 SCC 115].

7. In the result, this Court directs the Trial Court to fix a date on which Vazhuthanappillil Chacko Benny shall be examined and the proceedings should be completed within a period of one month from the date of receipt of a copy of this order.

8. This Criminal Original Petition is ordered accordingly. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar kmi To 1.The Home Secretary, State of Tamil Nadu, Department of law and Justice, Fort St. George, Chennai.

2.The Inspector of Police, Crime Branch Criminal Investigation Department, (CB-CID Nilagiri Unit) Udhagamandalam, Nilgiri District.

3. Advocate P.V.Ravi Chandran Special Public Prosecutor, Crime Branch Criminal Investigation Department, (CB-CID Nilagiri Unit), 294, New Addl. Law Chambers, High Court Buildings, Netaji Subhas Chandra Bose Road, Chennai-600 095.

4.The District and Sessions Judge, Magalir Neethi Mandram, Fast Track Mahila Court of the Nilgiris, Udhagamandalam.

5. The Public Prosecutor, High Court, Madras-104.

+1 CC to Mr.T. Raja, Advocate SR. No. 41109.

+1 CC to Mr.P. Ganeshram, Advocate SR. No. 40824. +1 CC to Mr.P.V. Ravichandran, Advocate SR. No. 40686. +1 CC to Mr.K.V. Sridharan, Advocate SR. No. 40558 +1 CC to Mr.P.V. Ravichandran, Advocate SR. No. 40686. (24/07/2018) Crl.O.P.No.24337 of 2017 SP(16/07/2018)