Madras High Court
Nagaraj vs State Rep By on 18 April, 2023
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.04.2023
CORAM:
THE HONOURABLE MR. JUSTICE K.K.RAMAKRISHNAN
Crl.O.P.(MD) No.4401 of 2021
and
Crl.M.P(MD)No.2471 of 2021
Nagaraj ...Petitioner
Vs.
1.State Rep by
The Deputy Superintendent of Police,
Kovilpatti,
Thoothukudi District.
2.The Inspector of Police,
Kayathar Police Station,
Thoothukudi District.
3.Nagarani ...Respondents
PRAYER: Criminal Original Petition filed under Section 407 Cr.P.C.
praying to withdraw the case in S.C.No.127 of 2020 on the file of the
Additional District and Sessions Court for the Exclusive trial of PCR Act
Cases, Thoothukudi and transfer the same to the file of the II Additional
Sessions Judge (Special Court for PCR Cases), Tirunelveli.
For Petitioner : Mr.T.Lenin Kumar
For R1 & R2 : Mr.M.Muthumanikkam
Government Advocate (Crl.Side)
For R3 : Mr.J.Mahesh Kumar
https://www.mhc.tn.gov.in/judis
2
ORDER
The petitioner is A1 in the S.C.No.127 of 2020 on the file of the Additional District and Sessions Court for the Exclusive Trial of PCR Act, Cases, Thoothukudi, and he filed this petition under Section 407 Cr.P.C., to withdraw the case in S.C.No.127 of 2020 on the file of the Additional District and Sessions Court for the Exclusive Trial of PCR Act, Cases, Thoothukudi, to withdraw the case and transfer the same to the II Additional Sessions Judge (Special Court for PCR Cases), Tirunelveli.
2.The first respondent filed the final report before the II Additional Sessions Judge (Special Court for PCR Cases), Tirunelveli, against the petitioner and the other accused for the offence under Sections 376, 394, 506(ii) of IPC and Section 3(i)(xii)(v) of SC/ST(POA) Act. The learned counsel for the petitioner submits that at the time of his appearance on 09.02.2021 before the Court below, the third respondent/victim's brother came along with some hooligans assembled together and took his photo and intended to murder him by engaging the said hooligans. So, he gave the complaint to the second respondent police and there was no action and due to the said tensed situation, his life is in peril and hence, he seeks transfer of his case to the some other Court.
https://www.mhc.tn.gov.in/judis 3
3.The petitioner/first accused filed Transfer Original Petition on the allegation that one of the relative of the victim girl made a threat to his life. This Court gone through the entire averments as well as the materials annexed in the typed set of papers and except the sweeping allegation, no other material is placed to substantiate his apprehension of life threat. By filing this petition, he prolonged the trial upon making the pendency of this petition. From the sequence of the events, it is clear that the petitioner filed this petition with mala fide intention to protract the trial and without any truth in the allegation made in the petition as well as the representation made to the police authority regarding the life threat faced by him. Hence, this Court does not find any surcharge atmosphere prevailed in the trial Court and hence, this Court has not find any reason to accept the case of transfer of the petitioner and hence, the petition is liable to be dismissed.
4.The said case was came up for hearing on 17.06.2021 and subsequently, it was adjourned periodically. Finally, this case was posted for hearing on 05.04.2023. On that day, this Court perused the records and the long pendency of the said sessions case without progress of the trial make up mind of this Court to call for explanation from the learned https://www.mhc.tn.gov.in/judis 4 Judicial Magistrate No.II, Kovilpatti, and the S.C.No.127 of 2020 on the file of the Additional District and Sessions Court for the Exclusive Trial of PCR Act, Cases, Thoothukudi, to give the explanation for the delay in completing the committal proceedings and the reason for not completing the trial. In this case, FIR registered on 11.08.2012. In which it is specifically averred that the victim girl aged about 16 years old, kidnapped by the three accused including the petitioner and committed rape and after completion of the rape they looted the articles of the victim and hence, the respondent police registered a case for the offences under Sections 376, 394, 506(ii) of IPC and Section 3(i)(xii)(v) of SC/ST(POA) Act. The same was investigated by the Investigation Officer. After completion of investigation, final report was filed before the learned Judicial Magistrate No.II, Kovilpatti, for the alleged offences under Sections 376, 506(ii) IPC, Sections 3, 4, 16 & 17 of the Protection of Children from Sexual Offence Act, 2012 and 3(1)(ii)(v)(xii) of SC/ST(POA) Act. Thereafter, the same was committed to the Special Court constituted under POSCO Act and the same was transferred to the Additional District and Sessions Court for the Exclusive Trial of PCR Act, Cases, Thoothukudi.
https://www.mhc.tn.gov.in/judis 5
5.The learned trial Judge, without conducting the trial, adjourned the case from 07.01.2021 onwards. In this case, occurrence took place on 11.08.2012 and final report was filed before the learned Judicial Magistrate No.II, Kovilpatti on 06.03.2013. This Court earlier by the order dated 05.04.2023, directed the learned Judicial Magistrate No.II, Kovilpatti as well as the Additional District and Sessions Court for the Exclusive Trial of PCR Act, Cases, Thoothukudi, to give explanation for not conducting the trial and also directed the Additional District and Sessions Court for the Exclusive Trial of PCR Act, Cases, Thoothukudi, to give explanation regarding the non transfer of proceedings on account of insertions of POCSO Act.
6.The learned Judge, furnished the explanation on 06.04.2023. In the said explanation, it is stated that since POCSO Act came into force only on 14.11.2012. So, the learned Principal Sessions Judge, Thoothukudi, by the judicial order dated 15.12.2020, transferred the case to the present Additional District and Sessions Court for the Exclusive Trial of PCR Act Cases, Thoothukudi.
https://www.mhc.tn.gov.in/judis 6
7.Section 14 of the SC/ST(POA) Act specifically mandate that trial to be completed within 2 months from the date of the filing of the final report. Further, 14(3) requires that day-to-day basis trial to be completed within two months. For better appreciation Section 14 of the SC/ST(POA) Act was extracted as follows:-
“14. Special Court and Exclusive Special Court.--
(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:
Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.
(2)It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible.
(3)In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-
day untill all the withnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyong the following day to be necessary for reasons to be recorded in writting;
Provided that when the trial relates to an offence under https://www.mhc.tn.gov.in/judis 7 this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.”
8.In spite of the mandate, the learned Special Judge, adjourned the case citing the reason that the above Criminal Original Petition is pending before this Court and without even verifying whether any order to stay of the trial granted by this Court or not. So, the explanation given by the learned trial Judge, for not conducting the trial is not accepted by this Court.
9.The Hon'ble Supreme Court in 2018 16 SCC 299 specifically directed the all the Trial Court to proceed the trial in the case of pendency of any petition before any High Court even with stay order beyond 6 months. Apart from that, the learned Judge, without applying his mind to the grave nature of the charge i.e., 3 accused persons kidnapped the 16 years girl to lonely place and committed gang rape and looted her articles. So, this Court placed its dissatisfaction over the explanation given by the learned Trial Judge.
10.It is seen from the records that some of the accused frequently not appear before the Court. Hence, NBW was issued and the same was executed by the Law Enforcing Agency. So, to verify the same, this Court https://www.mhc.tn.gov.in/judis 8 has directed the Investigation Officer namely, Mr.K.Venkatesh, the Deputy Superintendent of Police, Kovilpatti Sub-Division, Thoothukudi District, to appear and disclose the present status of the appearance of the accused before the Trial Court.
11.The Deputy superintendent of Police, Kovilpatti, sub-Division appeared and filed the following report:-
“5.I humbly submit that apart from the above said facts the accused No.3 namely Karuppasamy has filed bail petition before this Court in Crl.OP(MD)No. 14255/2012 and the same was granted by order dated 26.09.2012 and the Accused Nos.1 & 2 persons were filed bail petitions before the trial court in Cr.M.P.Nos.
2373/2012, 2357/2012, respectively and both the petitions were allowed by order dated 15.09.2012. Further after getting release from the jail, the accused persons 1 to 3 were not appear before the present trial court (Special Court for Trial of Cases Under SC/ST (PoA) Act, Thoothukudi) from 22.07.2022 and NBW was issued against the accused persons by the trial Court on 12.09.2022, after receiving the NBW, the respondent police taking all the sincere efforts and executed the NBW against Accused No.1 Nagaraj on 1.10.2022 and he was remanded to the judicial custody. Further on https://www.mhc.tn.gov.in/judis 9 12.10.2022 the respondent police executed the NBW against the accused persons 2 & 3 and they were remanded to the judicial custody.
6.I humbly submit that later on the accused persons 1 to 3 were filed bail application before the trial court in Cr.M.P.No.1576/2022 and the same was allowed by the trial court by order dated 27.10.2022 and the accused persons were appeared before the trial court till today without any absence. Further as far as the trial, the trial court served all the copies to all accused persons and the trial of the case was adjourned to 08.05.2023.”
12.As per the report of the first respondent/Investigation Officer, the case was adjourned to 08.05.2023 for commencement of trial.
13.Even though, this Court has not satisfied with the explanation given by the learned Additional District and Sessions Court for the Exclusive trial of PCR Act Cases, Thoothukudi, issued the following directions:-
13.1. Hereby, it is directed the learned Additional District and Sessions Court for the Exclusive trial of PCR Act Cases, Thoothukudi, to https://www.mhc.tn.gov.in/judis 10 complete the trial within two months from 08.05.2023 on day-to-day basis.
13.2. The Investigation Officer, who present today directed to ensure the presence of all the accused persons before the Trial Court without any default and also further directed the Investigation Officer to give necessary protection to the victim girl and all the material witnesses.
13.3. The accused are hereby directed to cooperate for the trial without making absence and in case of any absence, the trial Court is at liberty to proceed the trial in accordance with Section 299 Cr.P.C, ie., record the evidence in the absence of the accused and conclude the trial within the above time frame.
14.Accordingly, this Criminal Original Petition is dismissed with the above directions. Consequently, the connected miscellaneous petition is closed. Post this matter for reporting compliance on 08.07.2023.
18.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / Nodss
Note : Issue order copy on 05.05.2023
https://www.mhc.tn.gov.in/judis
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Note:
Mr.J.Mahes Kumar, learned counsel for the third
respondent/victim filed change of vakalat without getting consent from the earlier counsel. This Court taking the cognizance of non appearance of the earlier counsel inspite of the repeated request from the Court through the phone as well as the Public Prosecutor, issued the fresh notice to the victim girl and she engaged the present counsel and hence, the Registry is directed to mark the appearance of the Mr.J.Mahes Kumar, counsel on behalf of the victim girl and furnish the order copy if he made the application.
To
1.The Additional District and Sessions Court for the Exclusive trial of PCR Act Cases, Thoothukudi.
2.The II Additional Sessions Judge (Special Court for PCR Cases), Tirunelveli.
3.The Deputy Superintendent of Police, Kovilpatti, Thoothukudi District.
4.The Inspector of Police, Kayathar Police Station, Thoothukudi District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 12 K.K.RAMAKRISHNAN, J.
dss Crl.O.P.(MD) No.4401 of 2021 and Crl.M.P(MD)No.2471 of 2021 18.04.2023 https://www.mhc.tn.gov.in/judis