Accused sought recall of five prosecution witnesses for cross-examination after the Magistrate closed their evidence when counsel was unwell. The High Court found the Magistrate's dismissal order cryptic and without reasons, set it aside, and directed the Magistrate to summon the witnesses for cross-examination on a fixed date without adjournments.
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Crl.O.P.No.16268 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.07.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.16268 of 2024 and Crl.M.P.No.9912 of 2024
1.Saraswathi 2.Ponnusamy ... Petitioners
Vs.
1.State Rep.by The Sub Inspector of Police, Kamanaickenpalayam Police Station, Palladam, Tiruppur. Crime No.78 of 2023 ... Respondent
Prayer: Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, pleased to set aside the order dated 02.05.2024 passed in Crl.M.P.No.2361 of 2024 in S.T.C.No.16 of 2024 on the file the learned Judicial Magistrate, Palladam.
For Petitioners : Mr.A.Tamilarasan
For Respondent : Mr.S.Udayakumar Government Advocate (Crl.Side)
O R D E R
Th e petitioner herein is the accused in S.T.C.No16 of 2024 which
was taken cognizance by the Judicial Magistrate, Palladam on
Crl.O.P.No.16268 of 2024
02.01.2024 for offence under Sections 294 B and 323 IPC.
2. The prosecution has marshalled 5 witnesses on 25.04.2024 and they were examined as PW.1 to PW.5. On that day, the learned counsel for the petitioners/accused not well and therefore, cross examination of these witnesses could not be done. Recording no cross on the side of the accused, the learned Magistrate has closed their evidence and adjourned the matter for examination of further prosecution witness. Meanwhile, the petitioners had taken out an application under Section 311 Cr.P.C., to recall PW.1 to PW.5 to cross examine them. The said application been dismissed by the Judicial Magistrate stating that as per guidelines in numerous judgment of the Hon'ble High Court, this petition is untenable and not sustainable.
3. The learned counsel appearing for the petitioners/accused submits that in spite of assigning sufficient cause to recall PW.1 to PW.5 who were examined in chief, but could not be cross examined on the same day due to personal inconvenience of the counsel. The Judicial Magistrate without considering the reasons stated and without assigning justifiable reason for dismissing the petition has proceeded further to https://www.mhc.tn.gov.in/judis 2/5
Crl.O.P.No.16268 of 2024
examine other witnesses of the prosecution.
4. The learned Government Advocate (Crl.Side) appearing for the respondent police submits that out of 8 witnesses, prosecution has examined 5 witnesses, dispensed with examination of 2 witnesses and summon is issued to the Investigating Officer for his appearance on 08.08.2024.
5. Taking note of the fact that there is no reason assigned by the Judicial Magistrate for dismissing the application under Section 311 Cr.P.C., except stating that the accused not cross examined the witnesses on the same day, when they were chief examined. This Court finds that the said order is very cryptic and furthermore, the reason stated by the petitioners to recall the witnesses appears to be acceptable. Hence the order passed by the Judicial Magistrate in Crl.M.P.No.2361 of 2024 in S.T.C.No.16 of 2024 is set aside. The learned Judicial Magistrate is directed to cause summons for appearance of PW.1 to PW5 on 08.08.2024 and on their appearance, the petitioners shall cross examine them without seeking any adjournment, failing which the opportunity to cross examine will be forfeited. It is also directed that the Investigating https://www.mhc.tn.gov.in/judis 3/5
Crl.O.P.No.16268 of 2024
Officer, to whom the summon was issued, should also be present on that
day and the examination of Investigating Officer should be completed on the same day.
6. With this direction, this Criminal Original Petition is
allowed. Consequently, the connected Criminal Miscellaneous Petition is closed.
11.07.2024
Index : Yes/No Neutral Citation : Yes/No rpl To
1.The Judicial Magistrate, Palladam.
2.The Sub Inspector of Police, Kamanaickenpalayam Police Station, Palladam, Tiruppur.
3.The Public Prosecutor, High Court of Madras, Chennai.
Dr.G.JAYACHANDRAN,J.
rpl
4/5
Crl.O.P.No.16268 of 2024
C rl.O.P.No.16268 of 2024
11.07.2024
1 issue framed by the court
Whether the Magistrate's cryptic dismissal of the accused's Section 311 Cr.P.C. application to recall PW.1 to PW.5 for cross-examination should be set aside.
3 provisions across 3 enactments
Saraswathi
Ponnusamy
State Rep.by The Sub Inspector of Police, Kamanaickenpalayam Police Station, Palladam, Tiruppur
G.JAYACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
