R.Arunachalam v. The State Rep.By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN and Crl.M.P.No.8665 of 2023 R.Arunachalam ...
Petitioner vs The State represented by The Inspector of Police, AWPS, Omalur.
Crime No.2 of 2019.
...
Respondent Prayer : Criminal Original Petition has been filed under Section 482 of Cr.P.C, to set aside the order of dismissal in so far as recalling the prosecution witness of PWs.2, 5, 6, 7 and 9 by order dated 09.03.2022 made in C.M.P.No.18 of 2022 in Old Spl.S.C.No.40/2019 in New Spl.S.C.No.239/2019 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Salem by allowing this Petition and pass such further or other orders. For Petitioner ... Mr.R.Marudhachalamurthy For Respondent ... Mr.Leonard Arul Joseph Selvam Government Advocate (crl.side)
ORDER
This Criminal Original Petition has been filed to set aside the order of dismissal in so far as recalling the prosecution witness of PW2, PW5, PW6, PW7 and PW9 by order dated 09.03.2022 made in C.M.P.No.18 of 2022 in Old Spl.S.C.No.40/2019 in New Spl.S.C.No.239/2019 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Salem by allowing this Petition
2. It is the submission of the learned counsel for the petitioner that, petitioner filed C.M.P.No.18 of 2022 in Old Spl.S.C.No.40/2019 in New Spl.S.C.No.239/2019 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Salem for recalling PW1 to PW11 for the purpose of cross examination. The learned trial Judge allowed the petition in part, permitting recalling of PW1, PW3, PW4, PW8, PW10 and PW11 on payment of cash batta and dismissing the prayer for recalling PW2, PW5, PW6, PW7 and PW9. Challenging the order of Principal Special Court for Exclusive Trial of Cases under POCSO Act, Salem, this petition is filed.
3. It is the submission of the learned counsel for the petitioner that, these witnesses could not be cross examined, for the reason that, petitioner met with an accident and therefore, he was not able to give instructions to his counsel. PW2 is the victim girl. Since, she was not cross examined, petitioner was not able to cross examine other witnesses also. Unless PW2, PW5, PW6, PW7 and PW9, more particularly PW2 and PW7 are permitted to be recalled for the purpose of cross examination, petitioner would be seriously pre-judiced. He also threw attention of the Court with regard to the evidence given by PW2 and PW7. He further submitted that the PW7/Doctor is not the one, who actually examined the victim girl. Thus, it is absolutely necessary that these witnesses are to be recalled for the purpose of cross examination.
4. Learned Government Advocate (Criminal side) strongly opposed this petition, on the ground that, trial in this case is over and case is posted for Judgment today. He further submitted that, order dismissing Section 311 Cr.P.C petition was passed on 09.03.2022, however, this petition is filed in June 2023, after a delay of 1 year, 31/2 months, challenging the
dismissal order. Learned trial Judge has considered and found that, reasons are not acceptable and unsustainable and dismissed the petition. Hence, he prayed for dismissal of this petition.
5. Considered the submissions and perused the records.
6. As rightly pointed out by the learned counsel for the parties, PW1 to PW11 had not been cross examined on the date of their chief examination. It is seen from the typet-set of papers produced by the learned counsel for the petitioner that, PW1 to PW11 were examined on the dates noted against them.
Witnesses Chief Examination Dates PW1, PW2 and PW3 15.10.2019 PW4 and PW5 07.12.2019 PW6 10.01.2020 PW7 18.02.2020 PW8 11.09.2020 PW9 25.02.2021 PW10 16.04.2021 PW11 01.12.2021
7. It is seen from the order that, the reason for not cross examining these witnesses stated by the petitioner is that, petitioner met with a road accident and therefore, he was not able to give instructions to his counsel. However, the Trial Court found from the records that, this reason is not true, for the reason that, petitioner was regularly appearing before the Court on maximum number of hearings, when PW1 to PW11 were examined. Therefore, it is obvious that, the reasons stated by the petitioner for not cross examining PW1 to PW11 is not correct.
8. From the order of the learned Trial Judge, this Court finds that, petitioner is not vigilant and prompt either in cross examining PW1 to PW11 or filing petition for recalling of PW1 to PW11 for the purpose of cross examination. He has taken his own time for filing petition for cross examination of PW1 to PW11 and filing this petition, challenging the order of the learned Trial Judge.
9. However, this Court is of the view that, considering the seriousness of the offence, disposing the case without cross examining the material witnesses would not in the best interest of justice. PW2 has now became a major. In this view of the matter, this Court set asides the order
dated 09.03.2022 made in C.M.P.No.18 of 2022 in Old Spl.S.C.No.40/2019 in New Spl.S.C.No.239/2019 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Salem, insofar as recall of PW2, PW5, PW6, PW7 and PW9 are concerned and allows this petition. Petitioner is permitted to recall PW2, PW5, PW6, PW7 and PW9, on payment of cost of Rs.5,000/- each. On such payment of the amount, the learned Trial Judge is directed to recall PW2, PW5, PW6, PW7 and PW9 for the purpose of cross examination. The cross examination should be completed on the same day, when the witnesses appear before the Court.
10. In the result, this Criminal Original Petition is allowed, with the above directions. Consequently, the connected Miscellaneous Petition is closed.
21.06.2023 Index: Yes/No Internet: Yes/No Speaking/Non speaking order gd To
1. The Principal Special Court for Exclusive Trial of Cases under POCSO Act, Salem 2.The Inspector of Police, AWPS, Omalur.
3.The Public Prosecutor, High Court, Madras.
G.CHANDRASEKHARAN, J.
gd 21.06.2023