Thaneshkumar v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.10.2018

CORAM

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Crl OP(MD)No.16830 of 2018 and CrlMP(MD)No.7452 of 2018 Thaneshkumar ... Petitioners Vs.

State through The Inspector of Police, Kuzhithurai Police Station, Kanyakumari District.

[Crime No.216 of 2009]

...Respondent

PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to set-aside the order dated 20.10.2016 passed in Cr.M.P.No.9848 of 2016 in C.C.No.143 of 2009 on the file of the learned Judicial Magistrate-I, Kuzhithurai, Kanyakumari District and direct the Judicial Magistrate-I, Kuzhithurai, Kanyakumari District to recall PW1 and PW2 for cross examination in C.C.No.143 of 2009 on the file of the Learned Judicial Magistrate-I, Kuzhithurai, Kanyakumari District by allowing this Criminal Original Petition.

For Petitioner : Mr.G.Ramanathan For Respondent : Mrs.S.Bharathi, Government Advocate (Crl Side)

ORDER

This petition has been filed seeking to set aside the order made in CrlMP No.9848 of 2016 filed by the petitioner to recall PW1 and PW.2 and to cross examine them.

2.It is seen from records that totally 15 witness were examined in this case and the petitioner had cross examined all the other witness except PW.1 and PW.2. Therefore, a petition was filed to recall PW.1 and PW.2, in order to cross examine them. 3.The petitioner is facing trial for the alleged offence under Section 279 and 304 A IPC. The Court below while considering the application filed by the petitioner, has come to a conclusion that the petitioner has not explained the enormous delay that occurred in filing the petition to recall PW.1 and PW.2. The Court below has also given findings to the effect that the petition has been filed to drag on the proceedings.

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4.This Court is of the considered view that one last opportunity can be given to the petitioner in order to recall and cross examine PW.1 and PW.2. The order of the Court below in CrMP No.9848 of 2016 dated 20.10.2016 is hereby set aside and the petitioner is permitted to recall and cross examine PW.1 and PW.2. 5.The trial Court shall ensure the availability of the witnesses before issuing process. The trial Court shall fix a date for appearance of the witnesses before putting the witnesses in witness box. They shall be furnished with deposition, so that they can refresh their memory and only thereafter they can be subjected to cross examination. On the day, when the witnesses appear, if the petitioners fail to cross examine them even on account of Boycott of Courts, the petitioner will forfeit their rights to recall them again.

6.Each of the petitioners shall pay the cost of Rs.1,500/-, to each of the witnesses, when they come for giving evidence. If any other witness is examined on the side of the prosecution, the petitioner shall cross examine those witnesses also on the very same day when they are examined in chief and the trial Court shall ensure that the directions issued by the Hon'ble Supreme Court of India in Vinod Kumar Vs State of Punjab, reported in 2015 (3) SCC 220, are strictly complied with.

7.This Criminal Original Petition stands allowed on the above directions. Consequently, CrlMP(MD)No.7452 of 2018 is closed. Sd/- Assistant Registrar (AE) // True Copy // Sub Assistant Registrar(CS-IV) To 1.The Judicial Magistrate-I, Kuzhithurai, Kanyakumari District.

2.The Inspector of Police, Kuzhithurai Police Station, Kanyakumari District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC To MR.G.RAMANATHAN, Advocate SR. NO. 88756 Crl OP(MD)No.16830 of 2018 DSK 03.10.2018 TR/RSK/SAR-IV(09.10.2018)3P 5C https://hcservices.ecourts.gov.in/hcservices/