Madras High Court
Stalin vs State Rep. By The Deputy Superintendent ... on 20 July, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.16965 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.16965 of 2021
Stalin ... Petitioner
Vs.
State rep. by the Deputy Superintendent of Police,
Economic Offence Wing II unit,
Coimbatore District. ... Respondent
Prayer: Criminal Original Petition filed under section 482 of Criminal
Procedure Code, to set aside the order made in Crl.M.P.No.1217 of 2021
dated 29.07.2021 in CC.No.2 of 2013 on the file of the Special Judge,
Special Court under Tamil Nadu Protection of Interest, Depositors Act,
Coimbatore.
For Petitioner : M/s.G.Murugendran
For Respondent : Mr.A.Damodaran
Additional Public Prosecutor
ORDER
This petition has been filed to set aside the order made in Crl.M.P.No.1217 of 2021 dated 29.07.2021 in CC.No.2 of 2013 on the file of the Special Judge, Special Court under Tamil Nadu Protection of Interest, Depositors Act, Coimbatore.
https://www.mhc.tn.gov.in/judis 1/8 Crl.O.P.No.16965 of 2021
2. The petitioner was arrayed as A4 in Crime No.5 of 2012 on the file of respondent police. The respondent completed the investigation and filed a final report and the same has been taken cognizance in C.C.No.2 of 2013 for the offence punishable under Section 5 of the Tamil Nadu Protection of Interest of Depositors Act, 1981 (in short, the "TNPID Act") and Sections 120 (B), 406 and 420 of IPC. There are totally 4 accused. On the side of the prosecution, they examined P.W.1 to P.W.114. After examination of P.W.1 to P.W.114, the matter was posted for questioning under Section 311 of Cr.P.C. After the arguments, when the matter was listed for judgement in the Trial Court, it is found that there are materials available to attract the charges for the offences punishable under Sections 120 (B), 406 and 420 of IPC as against the accused persons. Therefore, the Trial Court altered the charges for the offences under Sections 120 (B), 406 and 420 and Section 5 of the TNPID Act. Therefore, the petitioner filed a petition to reopen and to recall P.W.1 to P.W.114 for further cross examination in respect of altered charges under Sections 120 (B), 406 and 420 of IPC and Section of 5 of TNPID Act. The Trial Court had dismissed the petition for the reason that the petitioner has been successfully dragging the case from https://www.mhc.tn.gov.in/judis 2/8 Crl.O.P.No.16965 of 2021 the year 2016 onwards. After a lapse of so many years, the petitioner filed a petition to recall P.W.1 to P.W.114 and the petitioner is not entiled to cross examine P.W.1 to P.W.114 and dismissed the petition.
3. A perusal of the records shows that P.W.1 to P.W.114 were examined on 18.01.2013 and they were fully cross examined by the accused persons. After hearing the arguments on both sides, the Trial Court posted the matter for judgment on 28.12.2020. Thereafter the Trial Court, considering the materials available on record, framed additional charges for the offences under Sections 120 (B), 406 and 420 of IPC on 09.03.2021. Again the matter was posed for arguments. In the meanwhile, third accused died and the petitioner, who is arrayed as 4th accused filed the petition under Section 311 of Cr.P.C to re-open and recall P.W.1 to P.W.114 for cross examination in respect of additional charges framed by the Trial Court for the offences under Sections 120 (B), 406 and 420 of IPC. Therefore, it is clear that the Trial Court framed additional charges only on 09.03.2021 and immediately the petitioner had filed the petition to reopen and recall P.W.1 to P.W.114 for further cross examination. However, the Trial Court, without giving opportunity to cross examine the prosecution witness in respect of the additional https://www.mhc.tn.gov.in/judis 3/8 Crl.O.P.No.16965 of 2021 charges framed against them, dismissed the petition filed under Section 311 of Cr.P.C., to reopen and recall P.W.1 to P.W.114.
4. In this regard, it is relevant to extract the provision under Section 216 of Cr.P.C 1973, which is as follows:
"216. Court may alter charge (1) Any Court may alter or add to any charge at any time before judgment is pronounced (2) Every such alteration or addition shall be read and explained to the accused (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the https://www.mhc.tn.gov.in/judis 4/8 Crl.O.P.No.16965 of 2021 Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
5. The above provision deals with the alteration or addition of new charges and the Trial Court added the charges under Sections 120 (B), 406 and 420 of IPC. The provision under Section 217 of Cr.P.C deals with recall of the witness when the charge is altered or added by the Court after commencement of the Trial. It is relevant to extract the provision of Section 217 of Cr.P.C "217. Recall of witnesses when charge altered -
Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and https://www.mhc.tn.gov.in/judis 5/8 Crl.O.P.No.16965 of 2021 the accused shall be allowed—
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re- examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material "
6. Therefore, it is clear that whenever charge is altered or added by the Trial Court, the prosecutor of the accused shall be allowed to recall or re-examination of the witnesses of such alteration. However, the Trial Court, without considering the same, mechanically dismissed the petition. In view of the above, the impugned order is liable to be set aside and the petitioner, who being an accused, must be given opportunity to re-examine the witness in respect of framing the additional charges. Accordingly, the order dated 29.07.2021 made in Cr.M.P.No.1217 of 2021 in C.C.No.2 of 2013 on the file of the Special https://www.mhc.tn.gov.in/judis 6/8 Crl.O.P.No.16965 of 2021 Judge, Special Court under the Tamil Nadu Protection of Interests of Depositors Act, Coimbatore, is set aside and the Trial Court is directed to fix a date for cross examination of P.W.1 to P.W.114 by the petitioner and complete the trial within a period of three months from the date of receipt of a copy of this order.
20.07.2022 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order lpp/jai To
1.The Deputy Superintendent of Police, Economic Offence Wing II unit, Coimbatore District.
2.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis 7/8 Crl.O.P.No.16965 of 2021 G.K.ILANTHIRAIYAN, J.
lpp/jai Crl.O.P.No.16965 of 2021 20.07.2022 https://www.mhc.tn.gov.in/judis 8/8