Madras High Court
Sankar vs State Through Inspector Of Police on 25 January, 2019
Author: A.D. Jagadish Chandira
Bench: A.D. Jagadish Chandira
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.01.2019
CORAM:
THE HONOURABLE MR. JUSTICE A.D. JAGADISH CHANDIRA
Crl.O.P.(MD).No.883 of 2019
and Crl.M.P.(MD).No.381 of 2019
Sankar .. Petitioner/Accused
Vs.
State through Inspector of Police,
SIPCOT Police Station,
Tuticorin.
(Crime No.211/2014) .. Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the
Cr.P.C., to call for records in Cr.M.P.No.368 of 2016, dated 26.05.2017
in S.C.No.79 of 2015 on the file of the Mahila Court, Tuticorin and set
aside the order.
For Petitioner : Mr.KA.Raamakrishnan
For Respondent : Mr.A.Robinson
Government Advocate (Crl. Side)
***
ORDER
This petition has been filed by the petitioner to set aside the order passed in Cr.M.P.No.368 of 2016, dated 26.05.2017 in S.C.No.79 of 2015 on the file of the Mahila Court, Tuticorin.
2.The learned counsel for the petitioner would submit that the petitioner is facing trial for the offences punishable under Sections 302, 307 and 506(ii) of IPC. He would further submit that during the http://www.judis.nic.in 2 trial the petitioner was affected by Mental illness and he was under
medical treatment at the Institute of Mental Health, Chennai. He would further submit that thereby the petitioner was unable to give proper instructions to his counsel and he was unable to cross examine important witnesses when they were examined in chief. Thereby the petitioner had filed a petition in Cr.M.P.No.368 of 2016 to recall the witnesses and cross examine them. The trial Judge by order, dated 07.09.2016, allowed the petition and permitted the petitioner to recall the witnesses. Process memo was filed and summons were issued to the witnesses for their appearance on 22.09.2016. Due to his ill-health the petitioner was unable to appear on 22.09.2016 and petition under Section 317 Cr.P.C. was filed and allowed.
3.Thereafter, summons were issued to PWs. 2,3,4 and 6 for their appearance on 18.10.2016. On 18.10.2016, the petitioner was absent due to his ill-health and the trial Court issued Non Bailable Warrant. Thereafter the accused appeared before the Court on 06.01.2017 and the Non Bailable Warrant was recalled and the matter was posted to 25.01.2017. On that day the petitioner was present and the witnesses were absent and the case was adjourned to 07.03.2017 for nomination of Special Public Prosecutor. Thereafter, the petitioner was present on 07.03.2017. On that day the witnesses were absent and since Special Public Prosecutor was not nominated, the case was again http://www.judis.nic.in 3 posted to 05.04.2017. Thereafter, after two hearings the case was posted on 19.05.2017. The trial Judge had dismissed the petition to recall on the ground of non compliance of conditional order of depositing of batta for recalling the witnesses and adjourned the matter to 02.06.2017. He would submit that due to the mental illness the petitioner did not appeared before the Court and thereafter after recovery he surrendered before the Court on 23.08.2018 and the Court issued summons to L.W.Nos.29 and 30 and adjourned the matter to 05.10.2018 and after several adjournments L.W.29 was present on 10.01.2019 and was examined as P.W.23 and Exs. P21 to P24 were marked and the case has been posted to evidence of Investigating Officer on 22.01.2019 and it has been subsequently adjourned to 29.01.2019.
4.The learned counsel for the petitioner would fairly conceded that though the petitioner was granted an opportunity, due to his mental illness and due to improper advice he has not paid the amount within the time and thereby the Court had dismissed the application for non compliance of the conditional order. He would further submit that the witnesses sought to be recalled are necessary witnesses whose evidence is essential for arriving at a just decision of the case. He would further submit that the petitioner is prepared to give an undertaking that the witnesses will be cross examined on the same day http://www.judis.nic.in 4 of their appearance before Court and that he would also submit that a direction may be issued to the trial Judge to complete the trial at the earliest.
5.This Court on the earlier occasion enquired the learned Government Advocate as to whether the witnesses are available in the circumstances and whether the prosecution will be able to produce the witnesses before the Court for cross examination. The learned Government Advocate on instructions from the respondents submits before this Court that the respondent will be able to produce the evidence on the particular date fixed by the Court. He would however submit that though the petitioner had been given several opportunities he did not avail the opportunities granted by the trial Court and that his conduct would show that he had been repeatedly absconding and he had not complied with the order only with the motive of protracting the trial and he would submit that the trial Court in compliance of the mandate of the order passed by the Honourable Apex Court in Vinodhkumar Vs. State of Panjab has rightly dismissed the petition for non compliance of the conditional order.
6.I have gone through the records. This Court is of the opinion that several opportunities have been granted to the petitioner and despite the opportunities the petitioner has failed to avail the http://www.judis.nic.in 5 opportunities granted to him and the conduct of the petitioner has to be deprecated and it is clear that he has attempted to protract the trial by all means.
7.However, taking into consideration that the petitioner was some times affected by mental illness and that the cross examination of the witnesses sought to be recalled are essential for arriving at a just decision of this case. This Court finds that one more opportunity may be granted to the petitioner on imposition of costs and strict terms.
8.The learned Additional Public Prosecutor would submit that the case has been posted on 29.01.2019. He would further submit that after giving some time the respondent will be able to produce witnesses during the first week of February. In view of the above, this Court directs the learned trial Judge, to recall the witnesses PW2 to PW4 and PW6 to PW21.
9.The petitioner shall pay an amount of Rs.1,000/- each to the witnesses PW2 to PW4 and PW6 to PW10 and PW14 to PW18 and Rs. 2,000/- each to the Expert witnesses PW11 to PW13 (Doctor). Totally a sum of Rs.19,000/- has to be deposited by the petitioner before the trial Court for payment of costs for the witnesses. Apart from the above, the petitioner shall also pay a sum of Rs.5,000/- before the District Legal http://www.judis.nic.in 6 Services Authority concerned and shall produce the receipt of the same before the trial Judge before cross examination.
10.The petitioner shall give an undertaking that the witnesses will be cross examined on the same day of appearance before the Court. The trial Judge shall on consultation with the respondent police fix the date for appearance of the witnesses. The trial Judge shall furnish the copy of the deposition to the witnesses for refreshing their memory before cross examination. The trial Judge is directed to complete the trial and dispose of the case within a period of two months from the date of receipt of a copy of this order. The petitioner shall appear before the Court on all hearing dates.
11.With the above directions, this criminal original petition stands disposed of. Consequently, connected miscellaneous petition is closed.
25.01.2019
Index : Yes / No
Internet : Yes / No
TM
Note: Issue order copy on 28.01.2019.
http://www.judis.nic.in
7
To
1.The District and Sessions Judge, Mahila Court, Tuticorin.
2.The Inspector of Police, SIPCOT Police Station, Tuticorin.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 8 A.D. JAGADISH CHANDIRA, J.
TM Crl.O.P.(MD).No. 883 of 2019 25.01.2019 http://www.judis.nic.in