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Madras High CourtCRL OP(MD)/13332/2017allowed

Malaiammal v. The Sub Inspector Of Police

2017-10-04Honourable Mr Justice S.S. Sundar2 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.10.2017

CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR CRL.OP.(MD)No.13332 of 2017 and CRL.M.P.(MD)No.9000 of 2017

1. Malaiammal

2. S.Muthu

3. Thangammal ... Petitioners/Accused 1 to 3 Vs.

State through, The Sub-Inspector of Police, Tirunelveli Taluk Police Station, Tirunelveli.

(Crime No.76 of 2012) ... Respondent/Complainant PRAYER: Criminal Original petition is filed under Section 482 of Criminal Procedure Code, to call for the records of the order dated 20.12.2016, in Cr.M.P.No.1803 of 2016 in C.C.No.184 of 2014 on the file of the learned Judicial Magistrate No.III, Tirunelveli, and to set aside the same by allowing this Criminal Original petition.

For Petitioners : Mr.S.Balamurugan For Respondent : Mr.K.S.Duraipandiyan, Additional Public Prosecutor.

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O R D E R

This Criminal Original petition is filed to set aside the order passed by the learned Judicial Magistrate No.III, Tirunelveli, in Cr.M.P.No.1803 of 2016 in C.C.No.184 of 2014, dated 20.10.2016, filed under Section 311 of Cr.P.C., to recall and to cross examine P.W.1, P.W.3 and P.W.5.

2. Heard the learned counsel appearing for the petitioners and the learned Additional Public Prosecutor appearing for the respondent.

3. The petitioners are the accused Nos.1 to 3 in the criminal proceedings in C.C.No.184 of 2014 on the file of the learned Judicial Magistrate No.III, Tirunelveli, for the alleged offences under Sections 294(b), 323, 324 and 506(i) I.P.C. https://hcservices.ecourts.gov.in/hcservices/

4. Before the lower Court, P.W.1 and P.W.3 were examined in chief on 07.07.2015 and P.W.5 was examined in chief on 28.07.2015. However, the petitioners' counsel before the lower Court did not cross examine the witnesses. A petition was filed on 03.05.2016 to recall three witnesses for cross examination. The said petition was dismissed by the lower Court only on the ground that no explanation was offered by the petitioners for the delay in filing the petition. The witnesses were examined on 07.07.2015 and 28.07.2015. Though the petition was filed on 03.05.2016 without sufficient reasons, the learned counsel for the petitioners states that due to change of counsel, the witnesses were not cross examined immediately.

5. This Court has repeatedly held that the accused should be given fair opportunity during trial. If no opportunity is given to cross examine the three witnesses, it will cause great prejudice to the defence case. In the said circumstances, this Court is of the view that the petitioners can be given one more opportunity to cross examine the three witnesses.

6. Hence, the Criminal Original petition is allowed and the order passed by the learned Judicial Magistrate No.III, Tirunelveli, in Cr.M.P.No.1803 of 2016 in C.C.No.184 of 2014, dated 20.10.2016 is set aside and the petition filed by the petitioners under Section 311 of Cr.P.C., in Cr.M.P.No.1803 of 2016 in C.C.No.184 of 2014 on the file of the learned Judicial Magistrate No.III, Tirunelveli, stands allowed. The petitioners are directed to cross examine P.W.1, P.W.3 and P.W.5 on the date when the witnesses are available for cross examination, without asking any further adjournment on any other ground. Consequently, connected Miscellaneous petition is closed.

Sd/- Assistant Registrar(Records) /True Copy/ Sub Assistant Registrar To 1.The Judicial Magistrate No.III, Tirunelveli, 2.The Sub-Inspector of Police, Tirunelveli Taluk Police Station,Tirunelveli. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1cc to M/S.S.BALA MURUGAN, Advocate SR.No.81628 pmu MAS/KP/SAR1:13.10.2017:2P-5C CRL.OP.(MD)No.13332 of 2017 https://hcservices.ecourts.gov.in/hcservices/ 04.10.2017