Vinayagam v. The State Rep. By The Inspector Of Police,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.06.2025 Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN Crl.O.P.No.17238 of 2025 and Crl.M.P.No.10843 of 2025 Vinayagam ... Petitioner Vs.
The State Rep. by Inspector of Police All Women Police Station Gudiyatham Vellore District ... Respondent Prayer: Criminal Original Petition filed under Section 528 of BNSS, 2023 to set aside the order dated 09.05.2025 passed by learned Sessions Judge, Magalir Neethi Mandram, (Fast Track Court) Vellore in Crl. M.P.No.119/2025 in S.C.No.128 of 2018 by dismissing the Section 311 Cr.P.C. petition filed by petitioner.
For Petitioner : Mr.D.Rajagopal For Respondent : Mr.S.Vinoth Kumar Government Advocate (Crl. Side) 1/7
ORDER
This Criminal Original Petition has been filed by the petitioner to set aside the order dated 09.05.2025 passed by learned Sessions Judge, Magalir Neethi Mandram, (Fast Track Court) Vellore in Crl.M.P.No.119/2025 in S.C.No.128 of 2018 by dismissing the Section 311 Cr.P.C. petition filed by the petitioner.
2. The case of the petitioner is that based on the complaint lodged by the mother of the victim, the respondent police registered a case in Crime No.4 of 2015 against the petitioner for the offence under Sections 376, 511 and 506(1) IPC alleging that the petitioner committed the offence of rape on her daughter. After investigation, the respondent police filed the charge sheet and the same was taken on file in S.C.No.128 of 2018 on the file of the Sessions Judge, Magalir Neethi Mandram, (Fast Track Court) Vellore. The grievance of the petitioner is that, the petitioner had engaged a counsel to defend his case. During the chief examination of P.W.1 to P.W.8, the defense counsel could not 2/7
cross examine the said witnesses due to his ill health. Therefore, the petitioner filed a petition under Section 311 Cr.P.C. in Crl.M.P.No.118/2024 seeking to recall all the prosecution witnesses viz., P.W.1 to P.W.8 for cross examination. But the learned Magistrate, dismissed the said petition by order dated 09.05.2025. Hence, challenging the same, the present petition is filed.
3. Heard both sides and perused the materials available on record.
4. It is seen that P.W.1 and P.W.2 were examined in chief way back in the year 2021 i.e. on 28.10.2021 itself. P.W.3 was examined in chief on 15.09.2022. P.W.4 was examined in chief on 19.07.2023. P.W.5 and P.W.6 were examined in chief on 27.09.2023. P.W.7 was examined in chief on 16.10.2023. P.W.8 was examined in chief on 27.10.2023 and the prosecution closed the evidence on 27.10.2023. The witnesses had been examined from the year 2021 to 2023 and till the completion of examination of all the prosecution witnesses, the petitioner had not taken any steps to cross examine the said witnesses. Thereafter, he has filed a petition under Section 311 Cr.P.C. to recall the said 3/7
witnesses on the ground that the defence counsel was not well which cannot be accepted. The petitioner has purposefully not cross examined any of the witnesses and in order to protract the case, he has watched the examination of the prosecution witnesses as a mute spectator for three years and after the completion of prosecution side witnesses, he has filed a petition to recall which is nothing but abuse of process of law. Therefore, the trial Court has rightly dismissed the petition. However, in order to give one more opportunity to the petitioner/accused, this Court is inclined to set aside the impugned order.
5. Accordingly, the order passed by the learned Sessions dated 09.05.2025 in Crl.M.P.No.119/2025 is set aside.
6. The petitioner is directed to deposit a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) before the trial Court on or before 23.06.2025 towards cost to the witnesses.
7. On such deposit, the learned Sessions Judge is directed to issue summons to the witnesses for appearance for the purpose of cross examination 4/7
on 30.06.2025 and 01.07.2025 (i.e. each day four witnesses have to be cross examined). The petitioner is directed to cross examine all the witnesses on the same day of their appearance failing which, he would loose his right of cross examination.
8. Further, the learned Sessions Judge is directed to disburse the said cost of Rs.25,000/- to the witnesses equally.
9. With the above directions, this Criminal Original Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. 16.06.2025 Index : Yes / No Speaking Order : Yes / No ksa-2 Note: Issue order copy on 18.06.2025.
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To
1. The Sessions Judge, Magalir Neethi Mandram, (Fast Track Court) Vellore
2. The Inspector of Police All Women Police Station Gudiyatham Vellore District
3. The Public Prosecutor High Court of Madras, Chennai 6/7
P.VELMURUGAN. J.
Ksa-2 16.06.2025 7/7