Dhanasekar v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.07.2017

CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR CRL.O.P.(MD)No.9084 of 2017 Dhanasekar : Petitioner/Petitioner/Accused -VsState represented by The Inspector of Police, Krishnankovil Police Station, Virudhunagar District. : Respondent/Respondent/Complainant PRAYER: Petition is filed under Section 482 of the Criminal Procedure Code, to set aside the order passed in C.M.P.No.160 of 2017 in C.C.No.46 of 2010, on the file of the Judicial Magistrate Court No-II , Srivilliputhur, dated 20.01.2017. For Petitioner : Mr.C.Vakeeswaran For Respondent : Mr.K.Anbarasan Government Advocate(Crl.Side)

O R D E R

This Criminal Original Petition is directed against the order passed by the learned Judicial Magistrate No.II, Srivilliputhur, in C.M.P.No.160 of 2017 in C.C.No.46 of 2010 .

2. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) appearing for the respondent and perused the records.

3. From the records it is evident that the petitioner filed a petition under Section 311 Cr.P.C., seeking to recall the witnesses, PW1 to PW6 and PW10 and PW12 for cross-examination. The said petition was dismissed by the Court below and the reasons stated in the order in the said C.M.P.No.160 of 2017 reads as follows:

"6. Finally, this Court has given sufficient opportunity to the petitioner for more than one year by posted to defense witness and the petitioner failed to utilize the opportunity given by this court neither filing recall of witness nor produce defence witness and the reasons stated in the present petition cannot accepted by this court and the petitioner failed to explain the reason for the delay to file the present petition after lapse of 5 years from the examination of P.W.1, dated 26.09.2001 even though the petitioner failed to https://hcservices.ecourts.gov.in/hcservices/

cross examine any witness out of 12 witnesses examined by the prosecution and it clearly shows that Sec.311 of Criminal Procedure Code was misused by the petitioner to drag on the case even this case comes under the categories of more than five year case, for which this court comes to a conclusion that this petition was filed without any merits. Hence, the present petition is dismissed with light of the above referred guidelines of Hon'ble Apex Court & High Court of Madras and by considering the facts & circumstances of the case."

4. It is evident from the petition that the petitioner has not assigned any reason for the long delay. It is admitted that the witnesses were examined from 26.09.2011 to 08.09.2015. The petitioner did not avail the opportunity for cross-examining the witnesses for all these years and he has come forward with this petition in the year 2017 just to prolong the case. The witnesses, who were spoken about the incident can not be called upon for cross examination after a length of more than six years. Therefore, if the petition is allowed, serious prejudice will be caused to the prosecution. The purpose to cross-examine the witnesses does not appear to be for any reasons which is bonafide or genuine. In the said circumstances, this Court has no other option except to dismiss this petition. Hence, this Criminal Original Petition is dismissed.

Sd/- Assistant Registrar((CS-II) /True copy/ Sub Assistant Registrar To 1.The Judicial Magistrate No.II, Srivilliputhur.

2.The Inspector of Police, Krishnankovil Police Station, Virudhunagar District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1cc to Mr.C.Vakeeswaran,Advocate,SR.65823 CRL.O.P.(MD)No.9084 of 2017 17.07.2017 DAS/PJL KK/SKN RSK/SAR2/26.07.2017/2P-5C https://hcservices.ecourts.gov.in/hcservices/