Madras High Court
Unknown vs State Rep. By on 12 December, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
Crl.O.P.No.30555 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.12.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE M.JOTHIRAMAN
Crl.O.P.No.30555 of 2024
1.Martin @ Tamil Selvan @ Martin TamilSelvan
2.Gurusamy
3.Madhaiyan
4.Kumar @ Venkatesan @ Palanisamy
5.Raja
6.Durai
7.Krishnan
8.Ravi
9.Muthu @ Pachamuthu
10.Thangapandiyan
11.K.Raja
12.Amalopavam @ Ananthi
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Crl.O.P.No.30555 of 2024
13.Sathya @ Uma @ Deivani @ Yosodha
14.Boothipatti Ramachandran
15.Sundaramurthy ... Petitioners
Vs.
State rep. By
The Deputy Superintendent of Police,
'Q' Branch, Crime Investigation Department,
Dharmapuri. ... Respondent
Prayer : Criminal Original Petition has been filed under Section 482 of Cr.P.C., to
direct the Special Court under the Prevention of Terrorism Act (POTA) to recall
Non-Bailable Warrant issued against the petitioners on 13.11.2024 and 16.11.2024
in Spl.S.C.No.3/2022 on the file of Special Court for POTA Act Poonamallee to
secure the ends of justice.
For Petitioner : Mr.R.Sankarasubbu
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.) The Criminal Original Petition has been instituted to direct the Special Court under the Prevention of Terrorism Act (POTA) to recall Non-Bailable Page 2 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 Warrant issued against the petitioners on 13.11.2024 and 16.11.2024 in Spl.S.C.No.3/2022 on the file of Special Court for POTA Act Poonamallee to secure the ends of justice.
2. The criminal case before the Trial Court is pending for the past about 22 years. Protraction and prolongation of trial after its commencement at any circumstances, will not be encouraged by the Trial Court.
3. Section 309 Cr.P.C provide power to postpone or adjourn proceedings. Once the trial commenced, adjournments cannot be granted in a routine manner and adjournments at request, ought to be considered only if the grounds stated are found to be genuine and by recording reasons.
4. The petitioners herein are charged for offences under Sections 120B, 148, 149, 333, 307 IPC r/w Sections 3(2)(b), 3(5) of POTA Act.
5. Mr.R.Sankarasubbu, learned counsel for the petitioners would submit that, petitioners/accuseds were appearing before the Trial Court during all Page 3 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 hearings. However, they could not able to appear for the trial on 13.11.2024 and 16.11.2024. Learned counsel for the petitioners filed a petition under Section 317 Cr.P.C. The petition was dismissed and Non Bailable Warrant (NBW) was issued. There is no reason to issue NBW, since the petitioners appeared before the Trial Court during all hearings either in person or through their counsels by filing a petition under Section 317 Cr.P.C. Therefore, the present petition is filed to recall the NBW issued against the petitioners on 13.11.2024 and 16.11.2024 in Spl.C.C.No.3 of 2022.
6. It is contended that in respect of three accuseds namely A12, A13 and A19, Section 317 Cr.P.C petition was allowed by the Trial Court. Mr.Sankarasubbu, learned counsel for the petitioners relied on the judgment of the Supreme Court of India in the case of Satender Kumar Antil Vs. Central Bureau of Investigation1 dated 11.07.2022. The following observations are made by the Court,
53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: 1 SLP.No.5191 of 2021 Page 4 of 17
https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 • it is reasonable to believe that the person will not voluntarily appear in court; or • the police authorities are unable to find the person to serve him with a summon; or • it is considered that the person could harm someone if not placed into custody immediately.
54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non- bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, Page 5 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.
56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.
7. He would further rely on the orders passed by the learned Single Judge of this Court in the case of Sirugudugu Naga Venkata Durgakumari and Others Vs. Sirugudu Jhansilakshmi2 dated 24.01.2007, wherein the Court held that the NBW issued to be recalled without the appearance of the accused persons.
8. Mr.Muniyapparaj, learned Additional Public Prosecutor would oppose by stating that, the petitioners/accused are attempting to prolong the trial one way or other and filing unnecessary petitions. The case is pending for the past 2 MANU/TN/3019/2007 Page 6 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 about 22 years. The counter filed by the Deputy Superintendent of Police, 'Q' Branch CID, Dharmapuri District is to be taken into consideration, wherein all the details regarding the earlier hearings of the present case has been narrated.
9. We have considered the arguments advanced by the parties.
10. Pertinently, 200 witnesses were cited in the final report. 84 witnesses have already been examined by the Trial Court. 52 witnesses died during pendency of the case. 93 witnesses have been dispenced with by the prosecution. Taking note of these factors and considering the fact that free flow of trial is obstructed one way or other, this Court ought to consider the factual details provided by the respondents in their counter affidavit.
11. The number of petitions filed under Section 317 Cr.P.C from 04.01.2023 by the petitioners/accuseds and the disposal of the Trial Court are as under, Page 7 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 SI.NO Petitioners/ Total No. of No. of days No. of 317 Allowed Dismissed Accuseds hearing present Cr.P.C petitions filed 1 Martin @ 451 22 429 428 01 TamilSelvan (Crl.M.P.no.
@ Martin 2600/2024)
TamilSelvan (NBW
(A1) issued on
13.11.2024)
2 Gurusamy 451 19 432 431 01
(A3) (Crl.M.P.no.
2600/2024)
(NBW
issued on
13.11.2024)
3 Madhaiyan 451 32 419 418 01
(A5) (Crl.M.P.no.
2598/2024)
(NBW
issued on
13.11.2024)
4 Kumar 454 31 423 422 01
Venkatesan (Crl.M.P.no.
@ 2621/2024)
Palanisamy (NBW
(A6) issued on
16.11.2024)
5 Raja (A7) 451 29 422 421 01
(Crl.M.P.no.
2595/2024)
(NBW
issued on
13.11.2024)
6 Durai (A8) 451 21 430 429 01
(Crl.M.P.no.
2599/2024)
(NBW
issued on
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Crl.O.P.No.30555 of 2024
SI.NO Petitioners/ Total No. of No. of days No. of 317 Allowed Dismissed
Accuseds hearing present Cr.P.C
petitions
filed
13.11.2024)
7 Krishnan 454 28 426 425 01
(A10) (Crl.M.P.no.
2621/2024)
(NBW
issued on
16.11.2024)
8 Ravi (A11) 454 37 417 416 01
(Crl.M.P.no.
2621/2024)
(NBW
issued on
16.11.2024)
9 Muthu 451 34 417 416 01
Pachamuthu (Crl.M.P.no.
(A15) 2596/2024)
(NBW
issued on
13.11.2024)
10 Thangapand 451 33 418 417 01
ian (A16) (Crl.M.P.no.
2596/2024)
(NBW
issued on
13.11.2024)
11 K.Raja 451 31 420 419 01
(A18) (Crl.M.P.no.
2597/2024)
(NBW
issued on
13.11.2024)
12 Amalorpava 454 62 392 391 01
m @ (Crl.M.P.no.
Anandhi 2621/2024)
(A20) (NBW
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Crl.O.P.No.30555 of 2024
SI.NO Petitioners/ Total No. of No. of days No. of 317 Allowed Dismissed
Accuseds hearing present Cr.P.C
petitions
filed
issued on
16.11.2024)
13 Sathya @ 454 28 426 425 01
Uma @ (Crl.M.P.no.
Deivani @ 2621/2024)
Yasodah (NBW
(A24) issued on
16.11.2024)
14 Boothipatti 451 28 423 422 01
Ramachanra (Crl.M.P.no.
n (A25) 2595/2024)
(NBW
issued on
13.11.2024)
15 Sundaramur 451 55 396 395 01
thy (A26) (Crl.M.P.no.
2600/2024)
(NBW
issued on
13.11.2024)
12. Pertinently, the accuseds have filed petitions to recall PW1 to PW83 after completion of their examination. It is not made clear why petitions were not filed then and there during the relevant point of time. The Trial Court in its order dated 18.11.2024, recorded the fact that on 08.07.2024, petition in Crl.M.P.No.962 of 2024 was filed to recall PW1 to PW83, which was allowed by imposing Page 10 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 condition.
13. Importantly, the Trial Court is empowered to direct the personal attendance of the accused at any stage of the case under Section 205(2) of Cr.P.C. Therefore, non-appearance of an accused at no circumstances be claimed as an absolute right. The Court is empowered to direct the personal attendance of the accused during the hearing at any stage of the case.
14. Keeping the above provisions in mind, and considering the fact that, within a period of 1 ½ years, 451 hearings were conducted, out of which, the petitioners were present hardly on 22 occasions. Section 317 Cr.P.C petitions filed are more than 400 in numbers.
15. The very statistics provided by the respondents would be sufficient to form an opinion that attempt is made to obstruct the free flow of trial proceedings. Despite the fact that opportunities were granted and many number of Section 317 Cr.P.C petitions filed by the accused persons were allowed by the Trial Court. Page 11 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024
16. The free and fair trial is sine-qua-non of Article 21 of Indian Constitution. It is trite law that justice should not only be done but it should seem to have been done. Therefore, co-operation of the prosecution and the accused persons are to be ensured under the provisions of law. The Trial Court are not expected to grant adjournments in a routine manner. Once trial commenced, the adjournments ought to be granted only on genuine grounds and by recording reasons. Equally the accuseds are expected to co-operate for completion of trial in all respects and they have to file Section 317 Cr.P.C petition only on genuine grounds and it cannot be a routine affair on the part of the accused persons by filing 317 Cr.P.C petitions.
17. Section 317 Cr.P.C stipulates provisions for enquiry and trial being held in the absence of accused in certain cases. Subsection (1) to Section 317 Cr.P.C contemplates that, At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a Page 12 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
18. Therefore, routine filing of Section 317 Cr.P.C petition need not be considered by the Trial Court in all circumstances. The practice of filing such petitions, in the absence of any valid reason needs no merit consideration. The provisions are provided to dispense with the presence of the accused only on certain exceptional circumstances and the Courts have to consider by recording reasons. Reasons being live link for Section 317 Cr.P.C, it cannot be a mechanical affair.
19. In the present case, the number of Section 317 Cr.P.C petitions filed before the Trial Court during the course of trial is alarming. Therefore, the Trial Court is expected to proceed with the trial without granting unnecessary adjournment and by not entertaining frivolous petitions. In the event of filing frivolous petitions by the accuseds, with an intention to prolong and protract the trail, such petitions are to be rejected in limine, if required by imposing exemplary Page 13 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 costs. Since the present case is pending for about 22 years, we request the Trial Court to proceed with the trial and dispose of the matter as expeditiously as possible.
20. As far as the NBW issued against the petitioners are concerned, under Section 70(2) of Cr.P.C, the petitioners are at liberty to appear before the Trial Court by filing a petition. If such petition has already been filed, the petitioners shall appear before the Court with a request to recall the NBW and it is for the Trial Court to take an appropriate decision and proceed with the trial without causing any undue delay.
21. As far as the ratio laid down by the Hon'ble Supreme Court of India in the judgment cited on behalf of the petitioners is concerned, the principles enumerated reveals that, the discretionary powers conferred must be exercised judiciously with extreme care and caution. The Courts should properly balance both personal liberty and societal interest before issuing warrants. Therefore, it is not only the personal liberty of the accused persons, but also the societal interest, which is to be taken into consideration by the Trial Courts. So far as the societal Page 14 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 interest in the present case is concerned, the criminal case is pending for about 22 years and out of 451 hearings, the accuseds have filed 317 Cr.P.C petitions for more than 400 occasions. Therefore, the judgment and the principles applied will have no application with reference to the facts of the present case, since the trial is being obstructed one way or other and the Trial Court is unable to proceed with the matter. That apart, the judgment of the Hon'ble Supreme Court is only relating to issuance of summons, Bailable warrant and when Non Bailable Warrant can be issued. Thus, the facts are also distinguishable and inapplicable to the facts of the case on hand.
22. With these observations, the Criminal Original Petition stands dismissed. Consequently, the connected Miscellaneous Petitions, if any, are closed.
[S.M.S., J.] [M.J.R., J.]
12.12.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
gd
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Crl.O.P.No.30555 of 2024
To
1. Special Court for POTA Act, Poonamallee
2. The Deputy Superintendent of Police, 'Q' Branch, Crime Investigation Department, Dharmapuri.
Page 16 of 17 https://www.mhc.tn.gov.in/judis Crl.O.P.No.30555 of 2024 S.M.SUBRAMANIAM, J.
AND M.JOTHIRAMAN, J.
gd Crl.O.P.No.30555 of 2024 12.12.2024 Page 17 of 17 https://www.mhc.tn.gov.in/judis