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Madras High CourtCRL OP(MD)/19491/2018disposed of

Selvanayagam, v. The Inspector Of Police

2022-03-23Honourable Mr Justice G.Ilangovan2 pages

Crl.O.P.(MD)No.19491 of 2018 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.03.2022 CORAM :

THE HON'BLE MR JUSTICE G.ILANGOVAN Crl.O.P.(MD)No.19491 of 2018 and Crl.MP(MD)No.8863 of 2018 Selvanayagam ... Petitioner Vs.

The State rep by The Inspector of Police, Kadayalumoodu, Kanyakumari District.

(Crime No.81 of 2012) ... Respondent Prayer: Criminal Original Petition filed under section 482 of Criminal Procedure Code, to direct the learned judicial magistrate Court No.1, Kuzhithurai to eschew the evidence of Roosevelt and others who were examined as P.W.1 to P.W.8 in C.C.No.7 of 2013 and for a further direction to the learned Judicial Magistrate Court No.1, Kuzhithurai to conduct a de-nova trial. For Petitioner : Mr.D.Venkatesh for Mr.M.P.Senthil For Respondent : Mr.SS.Madhavan, Government Advocate (Crl.Side)

O R D E R

This petition is filed seeking direction to direct the learned judicial magistrate Court No.1, Kuzhithurai to eschew the evidence of Roosevelt and others who were examined as P.W.1 to P.W.8 in C.C.No.7 of 2013 and also direct to conduct a de-nova trial. 2.The grievance of the petitioner is that he is the defacto complainant and he was summoned to appear before the Trial Court. But, due to his ill-health, he could not appear before the Trial Court for his examination. But, the Trial Court without minding that, examined one Roosevelt as P.W.1 and recorded his evidence as if he has lodged a complaint. But, actually, the petitioner herein is the defacto complainant.

3.The CD file was also perused. It is seen that the petitioner is the defacto complainant and he has lodged a complaint, upon which, criminal proceedings have been initiated. No doubt, there is a grievance on the part of the petitioner. Still there is a possibility for the petitioner to approach the concerned Court and https://hcservices.ecourts.gov.in/hcservices/ 1/2

Crl.O.P.(MD)No.19491 of 2018 give evidence. If there is any wrong evidence on the side of the Roosevelt, the same can be corrected by the Trial Court by recalling him. When such possibilities are available, the question of eschewing the evidence of P.W.1 is not proper. Once the evidence has been recorded, unless there is any mistake or error apparent on the face of record, that cannot be eschewed. As mentioned earlier, there is a mistake on the part of the prosecution in not examining L.W.1/defacto complainant.

4.This petition is disposed of with a direction to the petitioner to appear before the Trial Court on 01.04.2022 and on that date, the Trial Court shall examine the petitioner, as a witness. If any mistake is noted on the part of the prosecution, then that can also be corrected by the concerned Court by following the procedure as noted above. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CS I) // True Copy // / /2022 Sub Assistant Registrar(CS) dss To 1.The Judicial magistrate No.1, Kuzhithurai.

2.The Inspector of Police, Kadayalumoodu, Kanyakumari District.

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

Crl.O.P.(MD)No.19491 of 2018 and Crl.MP(MD)No.8863 of 2018 23.03.2022 MGJ(28.03.2022) 2P 4C https://hcservices.ecourts.gov.in/hcservices/ 2/2