T. Thangamani, v. State Rep. By Its Inspector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2016 (Orders Reserved on : 14.06.2016)
CORAM:
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM Crl.R.C.No.386 of 2016 and Crl.M.P.Nos.2573 and 3213 of 2016 T.Thangamani ... Petitioner/Defacto Complainant Vs.
1. State Rep. by its Inspector of Police, Sathyamangalam Police Station, Crime No.699/2003 Erode District.
...1st Respondent/Complainant
2. Kumara Ravikumar
3. Muthusamy
4. Peru.Natarajan
5. Thangaraj
6. Esu.Kandasamy
7. Saravanan
8. Dharmalingam
9. Moganatham 10.Somu @ Somasundaramoorthi 11.Kavitha @ Mythili Selvi 12.S.R.Sivasamy 13.Ramayal 14.Gow.Giri @ Girikori ... Respondents/Respondents 2 to 10 12,13 & 15 to 17 Prayer: Criminal Revision Case filed under Sections 397 & 401 of the Code of Criminal Procedure, to call for the records relating to the order dated 08.02.2016 made in Crl.M.P.No.368 of 2016 in C.C.No.92 of 2015 on the file of the learned Judicial Magistrate No.2, Gobichettipalayam and set aside the same by allowing the criminal revision case.
For Petitioner : Mr.N.Manokaran For R-1 : Mr.M.Mohamed Riyaz, Government Advocate (Crl.Side) For RR-2, 3, 4, 6, 8 & 14: Mr.I.Abrar Md. Abdullah For RR-9 to 13 : Mr.V.P.K.Gowtham For RR-5 & 7 : Mr.K.Sudhakar - - - - -
ORDER
This Criminal Revision Case is directed against the order passed by the learned Judicial Magistrate No.II, Gobichettipalayam, in Crl.M.P.No.368 of 2016, dated 08.02.2016, dismissing the petition filed by the petitioner under Section 326(2) of Cr.P.C.
2. On a perusal of the records, it is clearly revealed that on the basis of the complaint given by the petitioner on 01.11.2003, the Inspector of Police, Sathyamangalam, has registered a case in Crime No.699 of 2013 for the offences under Sections 467, 468, 471 and 506(2) IPC and after completing the investigation, he has laid a charge sheet before the learned Judicial Magistrate, Sathyamangalam, and it was taken on file as C.C.No.128 of 2006 on 08.06.2006. On 22.07.2015, P.W.1 and P.W.2 were examined. Subsequently, transfer petition in C.M.P.No.1650 of 2015 was filed before the learned Chief Judicial Magistrate, Erode, to transfer the said case to some other Court and it was ordered by the learned Chief Judicial Magistrate, Erode, on 09.09.
2015, to dispose of the case within six months from the date of receipt of a copy of that order and subsequently, the case was transferred to the file of Judicial Magistrate No.II, Gobichettipalayam and renumbered as C.C.No.92 of 2015. In the said case, the learned Judicial Magistrate No.II, Gobichettipalayam, ordered to conduct enquiry on 30.11.2015 and the petitioner has filed a petition in Crl.M.P.No.368 of 2016 on 05.02.2016 for recording the evidence of P.W.1 and P.W.2 afresh.
3. The learned counsel for the petitioner would mainly contend that under Section 326 Cr.P.C., the learned Magistrate has discretion to re-summon the witnesses and there is nothing illegal to order de nova trial, in view of the amendment of Section 350 of Cr.P.C. It is further contended that the occurrence took place in the year 2002 and the evidence was given in the year 2015, but, even without giving full and adequate opportunity to the witnesses to recollect the entire facts, their evidences were recorded at the instance of the defence counsel. The learned counsel for the petitioner also contended that in exceptional circumstances, the Court in order to prevent the miscarriage of justice, if considers necessary,
may direct for de nova trial. Hence, the order of the learned Magistrate dismissing the petition filed by the petitioner for recording the evidence of P.W.1 and P.W.2 afresh, is erroneous and the said order is liable to be set aside.
4. The learned Government Advocate (Crl.Side) appearing for the first respondent would vehemently contend that the learned Magistrate, after following the correct procedures, passed the order and therefore, there is no illegality or infirmity in the order passed by the learned Magistrate. It is also contended that since P.W.1 and P.W.2 were already examined by the competent Court, there is no question of conducting de nova trial of the already examined witnesses. The argument of the learned counsel for the petitioner that the occurrence took place in the year 2002 and the evidence was taken in the year 2015 and since the witnesses were not given full and adequate opportunity, de nova trial has to be ordered, is not at all acceptable. Hence, the learned Government Advocate prayed that the criminal revision case may be dismissed.
5. Heard the learned counsel appearing for the respondents 2 to 14 and perused the records.
6. It is admitted by both sides that the concerned Magistrate has examined the witnesses P.W.1 and P.W.2 in the Court. Subsequently, due to the reason that the petitioner has filed a petition before the learned Chief Judicial Magistrate, Erode, for transferring the case, the case was transfered to the file of learned Judicial Magistrate, Gobichettipalayam. Since the case was transferred to one Magistrate to another Magistrate, the subsequent Magistrate has to proceed with the case from where it is pending. Further, in this case, P.W.1 and P.W.2 were already examined. Hence, the argument of the learned counsel for the petitioner that the occurrence took place in the year 2002 and without giving full and adequate opportunity, the witnesses P.W.1 and P.W.
2 were examined in the year 2015 and hence the said witnesses have to be re-examined or de nova trial has to be ordered is not at all acceptable one and that kind of argument has to be rejected since, whenever P.W.1 and P.W.2 appeared before the Court and they were examined on the side of the prosecution, de nova trial cannot be ordered in this case.
7. It is useful to refer Section 326 of Cr.P.C. which reads as follows:- "326. Conviction or commitment on evidence partly recorded by one [Judge or Magistrate] and partly by another.- (1) Whenever any [Judge or Magistrate], after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercises jurisdiction therein and is succeeded by another [Judge or Magistrate] who has
and who exercises such jurisdiction, the [Judge of Magistrate] so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. Provided that if the succeeding [Judge or Magistrate] is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and reexamination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code [from one Judge to another Judge or from one Magistrate to another Magistrate,] the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325."
8. In view of the above provisions, the argument of the learned counsel for the petitioner that without giving full and adequate opportunity to the witnesses P.W.1 and P.W.2, they were examined and hence, the said witnesses have to be re-examined or de nova trial has to be ordered, is not at all acceptable and therefore, the said argument has to be rejected. There is no infirmity or illegality in the order passed by the learned Judicial Magistrate No.II, Gobichettipalayam. This Court finds no reason to interfere with the order passed by the learned Magistrate which does not warrant any interference by this Court and hence, the criminal revision case is liable to be dismissed.
9. In the result, this Criminal Revision Case is dismissed with a direction to the learned Judicial Magistrate No.II, Gobichettipalayam, to dispose the main case within a period of three months from the date of receipt of a copy of this order. The connected miscellaneous petitions are closed. -s/dAssistant Registrar True Copy Sub-Assistant Registrar
To
1. The Judicial Magistrate No.2, Gobichettipalayam.
2. The Inspector of Police, Sathyamangalam Police Station, Erode District.
3. The Public Prosecutor, High Court, Madras.
4. The Chief Judicial Magistrate Erode +1 cc to Mr.N.Manokaran Advocate sr 48412 Order in Crl.R.C.No.386 of 2016 aa07/09/2016