Dismissed

The State Rep by Its, v. N.Seenivasagan

Madras HC24 Jun 2019CRL OP/7694/2019

Case brief

AI extract

What is this about?

The prosecution sought to reopen a corruption case and recall witnesses to introduce Board approval documents concerning sanction. The Court declined interference with the refusal to reopen and recall, and dismissed both petitions and the connected miscellaneous petitions.

What the court decided

AI extract

The State Rep by Its, Vs N.Seenivasagan — Corruption | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 24.06.2019

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CORAM

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THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

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Crl.OP.Nos.7694 & 7816 of 2019 Crl.MP.Nos.4202 & 4238 of 2019

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The State represented by The Deputy Superintendent of Police, Vigilance and Anti-Corruption, Chennai City -IV, Alandur, Chennai-16. Crime No.14/AC/2010/CC-I.

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... Petitioner/Complainant in both Crl.OPs

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Tr.N.Seenivasagan, M/A 64 years, Formerly Chief Engineer, Distribution circle, South, Chennai. TNEB Complex, No.144, Annasalai, Chennai-2.

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... Respondent/Accused [A-1] in both Crl.OPs

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Prayer in Crl.O.P.No.7694 of 2019:- This Criminal Original Petition is filed u/s.482 of Cr.P.C., to call for the records in Crl.MP.No.225/2019 in Spl. C.C.No.9/2011 on the file of the Special Court for cases under the Prevention of Corruption Act, Chennai and set aside the order passed therein on 19.02.2019. Prayer in Crl.O.P.No.7816 of 2019:- This Criminal Original Petition is filed u/s.482 of Cr.P.C., to call for the records in Crl.MP.No.224/2019 in Spl. C.C.No.9/2011 on the file of the Special Court for cases under the Prevention of Corruption Act, Chennai and set aside the order passed therein on 19.02.2019.

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For Petitioner : Mr.K.Prabakar, APP

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For Respondent : Mr.V.Manohar

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COMMON ORDER

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1.These Criminal Original Petitions have been filed, challenging the common order, dated 19.02.2019, passed by the Special Court, for Cases under the Prevention of Corruption Act,Chennai, in Crl.MP.Nos.224 and 225 of 2019 in Spl.C.C.No.9/2011, dismissing the said petitions filed by the

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Petitioner/Complainant, to reopen the case and to recall/summon the witnesses, viz., P.W.1 and P.W.11, who are respectively the Officer, who accorded Sanction for Prosecution and the Investigation Officer.

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2.Crl.MP.Nos.224 and 225 of 2019 had been filed by the Complainant/State, to reopen the case in CC.No.9 of 2011 and to recall P.W.1 and PW.11 in CC.No.9 of 2011 for examination, for the purpose of marking the Board Approval Order and connected documents of TANGEDCO.

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3.In the said Miscellaneous Petitions to reopen and recall, Complainant/Petitioner had stated that the case was conducted by Mr.Tr.Panneerselvam, Additional Legal Adviser and he was transferred as the Deputy Director of Prosecution, Kancheepuram District and thereafter, Tr.Pandiarajan, ADLA, HQ, DVAC, Chennai was posted as the Special Public Prosecutor for conducting the case. It had been further stated that the Prosecution had examined P.W.1 to P.W.12 and through them marked Exs.P1 to P11 and MO.1 to M.O.10. Ex.P1 is the Sanction Order and that the sanction has been accorded by the Board and signed by PW.1 in the capacity of Chairman of the Board of TANGEDCO. It was further stated that in so far as Ex.P1, order of sanction is concerned, though the same was issued by the Board, the accused had taken a stand in defence that the order was not issued by the Board and the same was issued by the Chairman, who was not a competent person to accord sanction to prosecute the accused. It had been stated that at the time of filing the charge sheet, the Investigation Officer had obtained the Approval Order of the Board and however, he had not submitted the same before the Trial Court and that hence, in support of the contention of the Prosecution that the sanction was accorded by the Board, it was necessary to mark the documents pertaining to Sanction from the Board of TANGEDCO to satisfy the Court to arrive at a just decision of the case that the sanction was accorded in accordance with law and Rules and Regulations of TANGEDCO. Further, it was stated that the defence cannot have any objection with regard to the documents to be marked through P.W.1 or P.W.11 and that recalling P.W.1 and P.W.11 and marking the documents cannot be termed as lacuna or to fill up the gap, but only to help the Court for arriving at a just decision in this case and that the Prosecution had reserved its right to file petition under Section 91 of Cr.P.C, after passing of order in these petitions.

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4.The defence had filed its counter in the said Miscellaneous Petitions to reopen and recall, stating that the said petitions were filed to fill up the lacunae and to drag on the proceedings., so as to cause hardship to the respondent/ accused.

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5.The Trial Court, after hearing both sides, had passed a detailed order, dismissing the petitions filed by the

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Prosecution, as against which, the present Criminal Original Petitions have been filed.

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6.This Court heard the learned counsel on either side.

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7.The learned Additional Public Prosecutor would submit that the Trial Court had dismissed the petitions on wrong presumption and that it is the prerogative of the Prosecution that if the new Public Prosecutor feels that the erstwhile Public Prosecutor had not properly examined the witnesses, it is open to the Petitioner to file a petition under Section 311 of Cr.PC, for recalling/summoning the witnesses and that in this case also, the Special Public Prosecutor was changed because of transfer of previous Special Public Prosecutor and that the Special Public Prosecutor had explained as to how the documents are important for arriving at a decision of the case in the petition itself, whereas the Trial Court, without giving opportunity to the Prosecution with preconceived mind, had dismissed the petitions. He would further submit that the document proposed to be marked, which is the Approval Order of the Board, has not been enclosed with the petition, under section 311 of Cr. P.C. and that the Trial Court has failed to consider that the said order and the other relevant documents are under the custody of TANGEDCO and the same were to be produced by P.W.2 at the time of his deposition after recall and that it was not possible to file another petition by the Prosecution. He would further submit that the Special Public Prosecutor had clearly explained the facts before the Trial Court regarding the necessity to mark the documents, whereas the Trial Court, without understanding the necessity and the importance of the documents to be marked, had dismissed the petitions.

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8.The learned Additional Public Prosecutor would further submit that the Trial Court, without summoning or verifying the availability of the document, had wrongly assumed that the said document might have been created and that the Trial Court had not taken into consideration the various decisions rendered by the Apex Court and this Court, with regard to summoning of witnesses under Section 311 of Cr.PC and had wrongly dismissed, stating that the petitions were filed to fill up the lacunae at a belated stage after the defense was closed. He would further submit that that the application moved by Prosecution for summoning a witness under Section 311 of Cr.PC after the defense evidence has been recorded should not be termed as “attempt by Prosecution to fill up the lacuna”.

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9.The learned Additional Public Prosecutor would further submit that as per Section 311 of Cr.PC, any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his

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evidence appears to it to be essential to the just decision of the case. He would further submit that the Trial Court has got power to summon any material witness at any stage of the trial, for arriving at just a decision of the case and that when, in the interest of the justice, it requires that a person has to be summoned irrespective of the stage of the Trial, the Trial Court can reopen and recall a witness.

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10.The learned Additional Public Prosecutor would further submit that the sanction for prosecuting the respondent/ accused was accorded by the Board and only based on the sanction of the Board, the Chairman P.W.1 had issued the sanction order and that even in the sanctioned order, which has been marked as Ex.P1 at para No.4, it has been categorically mentioned that it has been issued by the Chairman-cum-Managing Director based on the order of the Board and that no prejudice will be caused to the respondent/accused, by recalling and re-examining P.W.1 and P.W.11, with regard to according sanction and other procedures for granting sanction.

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11.The learned Additional Public Prosecutor would further submit that the Trial Court, without taking into consideration the need, necessity and requirement of these documents, to prove that the sanction was accorded by the Board, had erroneously dismissed the applications and that even if the witnesses are recalled and reexamined, the respondent/accused would also have an opportunity to cross examine them and thereby, the interest of the respondent/accused will also be protected.

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12.On the other hand, the leaned counsel for the respondent/accused vehemently opposed and submitted that the Trial Court, taking into consideration the entire facts and circumstances, under which the applications had been filed and also taking into consideration the evidence of witnesses with regard to according of sanction by the Board and also taking into consideration the stage of the case and other attended circumstances, finding that the petitions had been filed, after completion of the arguments, had rightly dismissed the petitions.

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13.The leaned counsel for the respondent/accused would further submit that though several judgments have been cited by the Prosecution before the Trial Court, the Trial Court which was seized of the matter, finding that no detail regarding the document and no explanation had been furnished, why it was not brought to the notice of the Court at the time of examination of PW.1 and PW.11 and further finding that the applications were filed only to protract the proceedings so as to cause hardship to the respondent/accused, had held that the petition seeking to recall the witnesses for marking such a document, which was not produced before the Court cannot be considered and rightly dismissed the applications. He would further submit that the cognizance of the case was taken during the year 2010 and P.W.1 was examined in Chief on 06.06.2013 and

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thereafter, he was cross-examined by respondent/accused on 18.3.2014 and thereafter, recalled and re-examined by the second accused on 17.07.2014.

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14.The leaned counsel for the respondent/accused would further submit that it is the specific evidence of P.W.1 that the sanction was accorded by him and that he had sufficient powers to accord sanction and he had further during the cross examination stated that he passed the sanction order in respect of both the accused and that he does not remember that a Board meeting was conducted in his department and that the Chairman has got the powers to take the departmental action against the Chief Engineer of the Tamil Nadu Electricity Board and that there was no need for him to discuss with the Board Members for according sanction and that he did not discuss with the Board members and that there was no necessity for it. He would further submit that P.W.1 had clarified in his evidence that it had been stated in the sanction order that TANGEDCO had got powers to take action, thereby meaning that as a Chairman, he has got the powers to take action and that in the sanction order, he had not mentioned about the discussion he had with the Board, for taking action against the respondent/accused. PW.1 had further deposed that the request for granting sanction was received by him on 21.01.2011 and that he had joined TANGEDCO on 28.05.2011, as a Chairman and that thereafter, he had granted sanction on 28.06.2011.

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15.The learned counsel for the respondent would further submit that P.W.1 had categorically deposed that though it had been mentioned in Ex.P1 that the Board has granted sanction, it is a wrong statement and that the files, which were received from the Directorate of Vigilance and Anti Corruption, were not sent to the other members.

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16.At this juncture, the learned Additional Public Prosecutor would submit that when P.W.1 was cross examined by the second accused, he had specifically stated that the file pertaining to sanction for Prosecution against A1 and A2 was placed before the Board and the persons, who were conversant in Tamil, were also members of the Board and as Chairman of the Board he applied his mind and had accorded sanction. PW.1 had further deposed that according sanction and refusing to accord sanction against the Chief Engineer is not conferred upon him and only the Board has the power to accord or to refuse sanction to prosecute the Chief Engineer and that he had the power to accord or to refuse sanction only in respect of Officers below the cadre of Chief Engineer and that, in this case, since the respondent/accused is in the cadre of the Chief Engineer, sanction was accorded by the Board and he had further deposed that in respect of according sanction, the Board is supreme and the Chairman is under the Board and that when such being so, the Trial Court, without taking into consideration that only the Board has accorded sanction, had wrongly dismissed the

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applications.

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17.The learned counsel for the respondent/accused in reply would submit that the investigation officer P.W.11 was cross examined and he had also stated that Ex.P1 is the sanction order and that in Ex.P1, no reference has been made with regard to the letter, dated 21.01.2011 and the said letter ought to have been sent to the Board and further, he had specifically stated that it was wrong to mention that the Ex.P1 sanction order was issued based on the letter dated 28.09.2010. PW.11 had further stated that nothing had been mentioned in the sanction order that the sanction was granted after getting Board approval and further he had deposed that it was correct to say that in the sanction order at para 4 that the Chairman has got power to grant to sanction to prosecute further and he had also mentioned that when he had enquired P.W.1, he had stated that the Board has got power to accord sanction and that he had not taken any steps to rectify the sanction granted by the Chairman PW.1 and that he had not taken any steps to get sanction from the Board. He had further deposed that at para 4 of the Sanction order, he has not specially enquired P.W.1 with regard to the letter dated 28.07.2010 mentioned in the sanction order and had further reiterated that the Chairman has got powers to accord sanction and that as per his investigation, it was found that the Chairman is the person, who can accord sanction and further deposed that the Chairman is the Board and the Board is the Chairman and thereby he had not obtained any other details and therefore, he had not written any letter to the Board seeking to accord sanction. When such being so and when the evidence of PW.1 and PW.11 clear that the sanction has not been obtained from the Board there is no necessity for recalling them.

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18.The learned Additional Public prosecutor would further submit that the fact remains that the respondent/accused is an Officer in the cadre of the Chief Engineer and the Board is the Authority to accord sanction and that the Prosecution has got all materials to prove that the Board has accorded sanction and only based on the resolution passed by the Board, the Chairman had granted sanction only after due proceedings of the Board and that P.W.1 had issued Ex.P1 and that no prejudice will be caused to the respondent/accused by reopening the case and recalling and examining PW.1 and PW.11.

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19.At this juncture, the learned counsel for the respondent/accused would submit that a specific reference was made to Ex.P17 when P.W.11 was cross examined. He would submit that Ex.P17 is a letter, which was not produced along with the charge sheet and it was summoned under Section 311 of Cr.PC on the request of the respondent/accused and that Ex.P17 is a letter stated to have been addressed on behalf of the Directorate, seeking to fix a final date for production of relevant records for obtaining sanction and that as per the

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evidence of P.W.11, after sending the letter under Ex.P17, he had not approached either the Chairman or the Board with regard to obtaining sanction, thereby meaning that no documents were placed before the Board and no approval of the Board was obtained and that it is the specific evidence of P.W.11 that he had not sent the documents to P.W.1 after 20.01.2011. He would submit that all these documents are fabricated for the purpose of this case and that too much belatedly after the arguments were over and written submissions were filed, as an after thought, to defeat the defence of the respondent/accused, the present petitions were filed by the Petitioner/Prosecution to reopen and recall the witnesses, PW.1 and PW.11 to fill up the lacuna. The Trial Court, having found that the respondent/accused had closed all the avenues and proved that the approval of the Board was not obtained before the grant of sanction and taking into consideration the other attendant circumstances in the case and also the manner in which the petitions were filed, had passed a detailed order, dismissing the petitions filed by the Prosecution. He would submit that there is no infirmity in the impugned order passed by the Trial Court and taking into consideration and after analyzing the evidence of P.W.1 and P.W.11, the Trial Court had, by a reasoned order, extracting the relevant portions of the deposition of the witnesses regarding non obtaining of approval of the Board for according sanction, had rightly dismissed the petitions. Further, the Trial Court had taking into consideration the peculiar circumstances and facts of the case and also taking into consideration the stage at which the petitions were filed, had dismissed the petitions.

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20.I have carefully considered the submissions of the learned counsel on either side and also perused the impugned order of the Trial Court.

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21.In this case, the cognizance had been taken as early as during the year 2010 and the trial had commenced during the year 2011. Thiru.Hans Raj Varma, Chairman Cum Managing Director, TANGEDCO (PW.1) had been examined in Chief on 06.06.2013 and thereafter he had been cross examined by respondent/accused on 18.03.2014. Even on 6.06.2013, during the Chief examination, he had stated that the Directorate of Vigilance and Anti Corruption had requested for grant of sanction and that he had perused the documents and applied his mind and accorded sanction on 28.06.2011 and that he had further stated that as per Ex.P1, he has got sufficient powers to dismiss the respondent/ accused. No clarification was sought for from PW.1 by the Prosecution.

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22.On 18.3.2014, when P.W.1 had been cross examined by respondent/accused, he had deposed as follows:@jpU/rPdpthrfd;. Kjd;ik bghwpahsh; bjw;F kz;lyk;. jkpH;ehL kpd;thhpaj;jpy; gzpahw;wp te;jth; kPJk; jpU/kJR{jdd;. braw;bghwpahsh;. jkpH;ehL kpd;thhpak; jhk;guk; gzpahw;wpath; kPJk; tHf;F bjhlu ,irthiz

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nfl;oUe;jdh;/ nkw;fz;l Mtz';fis ehd; KGikahf ghprPyiz bra;J vd; KG kdij brYj;jp jpU/rPdpthrfd; kw;Wk; jpU/kJR{jdd; kPJ tHf;F bjhlu nghjpa Kfhe;jpuk; ,Ug;gjhf fUjp y";r xHpg;g[ rl;lk; gphpt[ 19(1)(c)d; go 28/06/2011k; njjp ,irthiz tH';fpndd;/ mJ m/rh/M/1 vdf;F vjphpfis gzpapypUe;J ePf;fk; bra;a nghjpa mjpfhuk; cs;sJ/ ,J rk;ge;jkhf CHy; jLg;g[ kw;Wk; fz;fhzpg;g[j; Jiw Jiz fz;fhzpg;ghsh; vd;id 19/07/2011 md;W tprhhpj;jhh;/@

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23.PW.1 had further deposed as follows:@ehd; Tamil Nadu Generation and Distribution Corporation-y; Chairman cum Manging Director Mf 28/05/2011 md;W gzpapy; nrh;e;njd;/ vdf;F jkpH; bjhpa[k;/ 28/06/2011k; njjp vjphpfs; kPJ tHf;F bjhlu ,irthiz tH';fpndd;/ 2 vjphpfs; kPJk; xnu ,irthizjhd; tH';fpndd;/ 28/06/2011k; njjp v';fSila Jiwapy; Board Meeting ele;j epidt[ vdf;F ,y;iy//////

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24.PW.1 had further deposed as follows:@jiyik bghwpahsh; kPJ Jiw hPjpahf eltof;if vLf;Fk; mjpfhuk; Chairman-f;F cz;L/////

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mjdhy; ,irthiz tH';Ftjw;F Board cWg;gpdh;fSld; fye;J Mnyhrpf;f ntz;oa mtrpak; ,y;iy vd;why; rhpjhd;/ ,e;j tHf;fpy; KjyhtJ vjphp kPJ ,irthiz tH';Ftjw;F Kd;g[ Board cWg;gpdh;fSld; fye;jhnyhrpf;f tpy;iy/ mjw;F mtrpaKk; ,y;iy/ vd;Dila ,irthizapy; KjyhtJ vjphpapd; kPJ Fw;wtpay; eltof;if vLg;gjw;F Tamil Nadu Generation and Distribution Corporation-f;F jhd; mjpfhuk; cs;sJ vd;W Fwpg;gpl;Ls;nsd;/ mjd; bghUs; Chairman Mfpa vdf;F mjpfhuk; cs;sJ vd;gJjhd;/ ve;j tpjpfspd; go vdf;F me;j mjpfhuk; cs;sJ vd;W Mtz';fis ghh;itapl;Ljhd; brhy;yKoa[k;/ vd;Dila ,irthizapy; vjphpapd; kPJ Fw;wtpay; eltof;if vLg;gjw;F ,irthiz tH';Fk; nghJ cld; fye;J Mnyhrpj;jjhf Fwpg;gpltpy;iy//////

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Mdhy; 21/01/2011k; njjp nfhg;g[fs; bgwg;gl;L ehd; 28/05/2011k; njjp me;j Jiwapy; Chairman Mf gzpay; nrh;e;J 28/06/2011 md;W ,irthiz tH';fpa[s;nsd;/ nfhg;g[fs; vd;iwa njjpapy; bgwg;gl;ld vd;W Fwpg;gpl;L brhy;ytpy;iy//////

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vjphpfs; kPJ tHf;F bjhlu Board tH';fpajhf gjpt[ bra;ag;gl;Ls;sJ vd;why; rhpjhd;/ nghyPrhh; tprhuizapy; vjphpfs; kPJ tHf;F bjhlu Board , irthiz tH';fpa[s;sjhf Fwpg;gplg;l;Ls;sJ jtwhdjhFk;/ CHy; jLg;g [ kw;Wk; fz;fhzpg;gpj;JiwapypUe;J bgwg;gl;l nfhg;g[fs;. cWg;gpdh;fSf;F mDg;gpapUf;f tha;g;gpy;iy/@

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25.The respondent/accused had completed his cross examination on 18.03.2014 and even on that day, no clarification had been sought for from PW.1 and again on the petition filed by the second accused, P.W.1 had been recalled on 17.07.2014 and even on that day, no clarification had been sought for from P.W.1 with regard to the earlier statements.

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26.Further P.W.11 had been examined in Chief on 01.02.2017 and he had been cross examined by the respondent/accused on 13.02.2017. He had stated as follows:-

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@m/rh/M/1 jhd; me;j ,irthizahFk;/ M/rh/M/1 ,irthizapy; 20/01/2011 njjpapl;l fojj;jij Fwpj;J ve;;jtpj Fwpg;g[k; ,y;iy vd;W brhd;dhy; rhpjhd;/ m/rh/M/1 ,irthizahdJ mjpy; Fwpg;gplg;gl;Ls;s 28/07/2010 njjpapl;l nfhhpf;ifapd; mog;gilapy; bfhLf;fg;gl;lJ vd;W brhd;dhy; rhpay;y/ m/rh/M/1 ,irthizapyl nkw;go ,irthizahdJ rhhpaj;jpd; FG xg;g[jYf;F itf;fg;gl;L xg;g[jy; bgwg;gl;Ls;sJ vd;w tptuk; Fwpg;gplg;gltpy;iy/ m/rh/M/1 ,irthizapd; 4tJ gj;jpapy; jkpH;ehL kpd;thhpa nrh;kd; 1k; vjphpia gzpePf;fk; bra;a[k; mjpfhuk; jdf;F cs;sjd; mog;gilapy; ,irthiz tH';fpa[s;sjhf Fwpg;gplg;gl;Ls;sJ vd;W brhd;dhy; rhpjhd;/ m/rh/1I ehd; tprhuiz bra;j nghJ 1k; vjphpia gzpePf;fk; bra;a[k; mjpfhuk; jkpH;ehL kpd;rhu thhpajpw;Fjhd; cs;sJ vd;W Fwpg;gpg;gl;Ls;shh; vd;W brhd;dhy; rhpjhd;/ mt;thW m/rh/1 jkpH;ehL kpd;rhu thhpaj;jpw;F jhd; 1k; vjphpia gzpePf;fk; bra;a[k; mjpfhuk; cz;L vd;W Fwpg;gpl;l gpd;g[k; 1k; vjphpf;F vjpuhd ,irthizia jkpH;ehL kpd;rhu thhpa FGtplkpUe;J bgWtjw;nfh my;yJ me;j thhpa FGtpd; Ratification bgWtjw;F ehd; ve;j eltof;ifa[k; nkw;bfhs;stpy;iy vd;W brhd;dhy;. FGtpy; cWg;gpdh;fs; cs;shh;fs; vd;W vdf;F bjhpa[k;/ vdnt 1k; vjphpf;F vjpuhf tH';fg;gl;l ,irthiz bry;y jf;fJ my;y vd;W brhd;dhy; rhpay;y@

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27.PW.11 had been further recalled and cross examined on 27.02.2017 at length. On that day, cross examination had been done with regard to Ex.P.17, which was a document summoned by the respondent/accused. Even at that time, there was no clarification was sought from him with regard to the documents sent to the Board from the Directorate of Vigilance and Anti Corruption Department. Further, he had deposed as follows:-

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@m/rh/M/1 ,irthizapy; m/rh/1 28/07/2010 njjpapl;l fojj;jpd; mog;gilapy; jhd; m/rh/M/1 ,irthizia tH';fpa[s;sjhf Fwpg;gpl;oUe;jhy; mJ rk;ge;jkhf m/rh/1lk; Fwpg;ghf tpsf;fk; VnjDk; nfl;L tprhhpj;njdh vd;W nfl;lhy; mt;thW ehd; m/rh/1lk; tprhuizapd; nghJ tpsf;fk; vJt[k; nfl;ftpy;iy/ 28/07/2010 njjpapl;l fojj;jpw;F bfhLj;j gjpypd; mog;gilapy; 1k; vjphp tfpj;j gjtpf;F ,irthiz tH';ff;Toa mjpfhuk; ahUf;F cs;sJ vd;W Fwpj;J ehd; tprhhpj;njdh vd;W nfl;lhy;;. jkpH;ehL kpd;rhh thhpa nrh;nkd; jhd; 1k; vjphpf;F vjpuhf ,irthiz tH';ff;Toa mjpfhuk; cs;stu; Mthh;/ vjd; mog;gilapy; mth; mjpfhuk; cilath; vd;W eph;zapj;njd; vd;W nfl;lhy;. Vdf;F bjhpe;j tifapy; mth; jhd; mjpfhuk; cilath; Mthh;/ jkpH;ehL kpd;rhu thhpa nrh;nkdpw;F ,irthiz nfhhp fojk; vGj brhd;dJ ehd;jhdh vd;W nfl;lhy;. ehd; Twtpy;iy v';fSila ,

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af;Feufk; jhd; vGjpdhh;fs;/ 1k; vjphpf;F vjpuhf ,irthiz tH';Ftjw;F jkpH;ehL kpd;rhu thhpa FGkj;jpw;F jhd; mjprhuk; cs;sJ vd;W brhd;dhy;. nrh;nkd; FGkk;. FGkk; jhd; nrh;nkd; Mfk;/ jkpH;ehL kpd;rhu thhpa FGkj;jpw;F vj;jid cWg;gpdh;fs; ,Ue;jhh;fs; vd;gJ Fwpj;J ehd; tprhhpf;ftpyiy/ jkpH;ehL kpd;rhu thhpa FGkk; vd;gJ 11 cWg;gpdh;fis bfhz;lJ vd;W brhd;dhy; mJ Fwpj;J vdf;F bjhpahJ/ 1k; vjphpf;F vjpuhf ,irthiz nfhhp jkpH;ehL kpd;rhu thhpa Fgkj;jpw;F ehd; ve;j tpj fojKk; vGjtpy;iy/ fhyk; brd;w 2k; vjphpf;F jhd; m/rh/1 ,irthiz tH';f mjpfhuk; cilath; vd;W brhd;dhnyh 1k; vjphpf;F vjpuhf ,irthiz tH';Fk; mjpfhuk; m/rh/1w;F ,y;iy vd;W brhd;dhnyh rhpapy;iy/ m/rh/M/1 , irthizahdJ 1k; vjphpia bghWj;jtiu bry;yj;jf;fjy;y vd;W brhd;dhy; rhpay;y/ m/rh/M/17 MtzkhdJ Kiw jtwp ,e;j tHf;fpw;fhf vd;dhy; jahh; bra;ag;gl;Ls;sJ vd;W brhd;dhy; rhpay;y/ “

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28.After the evidence on the side of Prosecution was closed on 31.10.2017, the case was posted for arguments on 15.11.2017 and it had been adjourned to 24.11.2017 and., 07.12.2017, on which days the learned Special Public Prosecutor had argued partly and the case was posted for defence side arguments on 16.12.2017 and the argument of the defence counsel was heard in part and was posted for continuation. Thereafter, on several occasions on 26.12.2017, 28.12.2017, 05.01.2018, 10.01.2018, 17.01.2018, 03.02.2018, 09.02.2018, 12.02.2018, the case was posted for arguments and later arguments were heard and closed on 16.02.2018. The defence counsel had filed the written submissions/arguments and thereafter, the case was again posted on 27.02.2018 for continuation for arguments by the Prosecution. Thereafter, the case had been adjourned to 07.03.2018, 04.04.2018, 13.04.2018, 27.04.2018, 07.05.2018, 18.05.2018, 08.06.2018, 25.06.2018, 04.07.2018, 10.07.2018, 12.07.2018, 16.07.2018, 18.07.2018, 25.07.2018, 07.08.2018, 17.08.2018, 24.08.2018, 31.08.2018, 18.09.2018 and 05.10.2018, 12.10.2018. During such time, A2 had died and thereafter, the case had been posted on 17.10.2018, 23.10.2018, 26.10.2018 for both sides arguments.

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29.Thereafter, the case had been posted for final hearing and subsequently the case has been adjourned for about 33 hearings on various days for final arguments and thereafter, in the meanwhile on 25.06.2018, the presiding officer was transferred and thereafter, the case had been repeatedly posted for arguments and thereafter, once again, the case had been adjourned for several hearings for about 35 times and the Court had finally posted the matter on 11.03.2019 for filing final written arguments by the Prosecution. At that juncture, the petitions have been filed to reopen and recall .

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30.It is seen from the records that though the Prosecution had several opportunities, the Prosecution, at no point of time, had attempted to reopen and recall the witnesses. The

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https://hcservices.ecourts.gov.in/hcservices/

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Prosecution had been lethargic in its attitude and had filed the petitions at the fag end after closure of arguments.

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The Trial Court, after perusing the records and going through the evidence and taking into consideration the attendant circumstances, having found that the Prosecution evidence being closed long back and that summoning of the witnesses at the belated stage would cause prejudice to the accused, had dismissed the petitions.

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32.In 2019 SCC Online SC 161 (Swapan Kumar Chatterjee Vs. CBI), the Hon'ble Supreme Court had held as follows:-

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“10. Section 311 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) provides for the power of the court to summon material witness or examination person present. It reads as follows:

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“311. Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”

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The first part of this Section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

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It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.

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Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.”

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33.To sum up, taking into consideration the deposition of PW.1 and PW.11 and taking into consideration the stage, at which the Petitions had been filed and being not satisfied with the reasons stated by the Prosecution to recall the said witneses, the Trial Court had rightly dismissed the Petitions.

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34.This Court has also perused the documents and materials, on record, in a proper and perspective manner and this Court finds that the reason/ground assigned by the Petitioner to recall and cross examine PW.1 and PW.11 is not valid. Hence in the opinion of this Court, the impugned order warrants no interference by this Court.

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35.In view of the foregoing reasoning and discussions and in the light of the decision of the Hon'ble Supreme Court, cited supra, I do not find any infirmity in the impugned order passed by the Trial Court and consequently, these Criminal Original Petitions deserve to be dismissed.

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36.In the result, these Criminal Original Petitions are dismissed. Consequently, the connected miscellaneous petitions are also dismissed.

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Sd/Assistant Registrar(CS VIII)

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//True Copy//

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Sub Assistant Registrar

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To:

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The Deputy Superintendent of Police, Vigilance and AntiCorruption,

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Chennai City -IV, Alandur, Chennai-16.

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https://hcservices.ecourts.gov.in/hcservices/

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2.The Public Prosecutor, High Court, Madras.

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+1cc to Mr.V.Manohar, Advocate Sr.52546 +1cc to the Government Pleader Sr.52548

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Crl.OP.Nos.7694 & 7816 of 2019

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pp[co] srg 16/08/2019

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The State Rep by Its, v. N.Seenivasagan

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The State Rep by Its, v. N.Seenivasagan

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