1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.12.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.15501 of 2011 and M.P.(MD) No.1 of 2011 Nainar ... Petitioner Vs. State: represented by The Inspector of Police, Palayamkottai Police Station, crime No.1269 of 2008 ... Respondents Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to set aside the order passed in Cr.M.P.No.485 of 2011 in S.C.No.250 of 2011 on the file of the Sessions Judge (Mahalir Neethimantram), Tirunelveli dated 26.08.2011. For Petitioner :: Mr.T.A.Ebenezer For Respondents :: Mr.P.Kannaithevan, Govt. Advocate (Crl.side) O R D E R This Criminal Original Petition has been filed to set aside the order passed in Cr.M.P.No.485 of 2011 in S.C.No.250 of 2011 on the file of the Sessions Judge (Mahalir Neethimantram), Tirunelveli dated 26.08.2011. 2. Heard Mr.T.A.Ebenezer, learned counsel appearing for the petitioner and Mr.P.Kannaithevan, learned Government Advocate (Criminal side) appearing for the State. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is the sole accused in the case, which was taken on file in S.C.No.250 of 2010 for the offence under Sections 366 and 376 I.P.C. He would further submit in his argument that the prosecution witnesses were examined by the State and due to the illness of the petitioner/accused and his counsel, they were not cross examined by the petitioner's counsel. He would further submit that the petitioner has filed a petition under Section 311 Cr.P.C., to recall the witnesses viz., P.Ws.2,6,7 and 10, who were not cross examined. The said application filed on 05.07.2011 in https://hcservices.ecourts.gov.in/hcservices/ 2 Cr.M.P.No.485 of 2011 was dismissed by the learned Sessions Judge, without any reasons. He would further submit that the learned Sessions Judge, has not given any opportunity to cross examine the witness, which would violate the norms of natural justice. He would further submit that the witnesses are necessarily to be cross examined to establish the defence of the petitioner and if the order passed by the learned Sessions Judge is confirmed, that would result in serious prejudice to the defence of the petitioner/accused. 4.He would further submit that a fair opportunity should be given to the accused to defend his case, which is the basic criminal jurisprudence and the lower Court had wrongly understood the provisions of Section 311 Cr.P.C., and had come to a wrong conclusion of dismissing the petition. He would therefore, request the Court to set aside the order passed by the learned Sessions Judge, Mahalir Neethimantram in Cr.M.P.No.485 of 2011 dated 26.08.2011 and to permit the petitioner to cross examine P.Ws.2,6,7 and 10 and thus render justice. 5.The learned Government Advocate (criminal side) would submit in his argument that the petitioner has applied for the cross examination of those witnesses belatedly and the petitioner cannot at his whims and fancies, seek for cross examination without any valid reasons. He would further submit that the lower Court had elaborately discussed the provisions of section 311 Cr.P.C and denied the request of the petitioner and the said order need not be set aside. If for any reasons, this Court is inclined to set aside the impugned order, passed by the learned Sessions Judge, Mahalir Neethimantram, the respondent is ready to produce the witnesses to be cross examined on the petitioner's side. 6.Considering the submissions made by both sides, I could see that the trial is offing before the learned Sessions Judge, Mahalir Neethimantram, Tirunelveli in S.C.No.250 of 2011 and the prosecution witnesses were examined as per the schedule of the examination of the witnesses. However, the witnesses viz., P.Ws.2,6,7 and 10 were not cross examined by the petitioner's counsel on behalf of the petitioner at the time of the examination of such witnesses. 7.It is not brought to the notice of this Court that whether the cross examination of the said witnesses have been deferred at the request of the petitioner or closed for want of cross examination on the petitioner's side. Whatever be the case, the said witnesses viz., P.Ws.2,6,7 and 10 were not cross cross-examined by the petitioner or petitioner's counsel. No doubt, the examination of the prosecution witnesses is still offing and it has not been closed on the side of the prosecution. The reason put forth by the petitioner was that he himself as well as his counsel were under the clutches of sickness on those dates and therefore, they could not cross examine those witnesses, when they were examined before the https://hcservices.ecourts.gov.in/hcservices/ 3 Court. The submission of the learned counsel for the petitioner would be that the petitioner has to establish his defence by cross examining those witnesses and if it is denied, it would be amounting to denial of justice. 8.According to the reasoning given by the lower Court, the omission of cross examination of witnesses was not explained promptly as well as the provisions under Section 311 Cr.P.C could be invoked, when a person is sought to be recalled or re- examined by one party, if the evidence of such witness appears to it to be essential to the just decision of the case. No doubt, it is true that such a recalling as well as re-examining of any witness can be ordered by the Court, if it is essential to the just decision of the case, when it was sought to be recalled or re-examined when such witnesses were already exhausted, examined through chief , cross and re-examination. Admittedly, the witnesses P.Ws.2,6,7 and 10 were not cross examined by the petitioner. If for any reason, the witnesses have not been permitted to be cross-examined by the petitioner and the judgment is pronounced against the petitioner on the available evidence, the petitioner/accused would be under the presumption that the non cross-examination of the witnesses viz., P.Ws.2,6,7 and 10 had caused such a havoc to him. If the petitioner is given an opportunity to defend his case by cross examining those witnesses, who were admittedly not cross examined by the petitioner/accused person and if any judgment has been pronounced that would be appearing to be just. The rule to be followed by the lower Court would be "justice shall essentially be done, but also seems to be done". The pronouncement of judgment without giving an opportunity to the accused person for cross examining of the witnesses viz., P.Ws.2,6,7 and 10 would not be a judgment containing a just decision. Therefore, the cross examination of P.W.2, P.W.6, P.W.7 and P.W.10 are essential to reach a just decision. 9.Therefore, I find that the order passed by the learned Sessions Judge, Mahalir Neethimantram in Cr.M.P.No.485 of 2011 in S.C.No.250 of 2011 on 26.08.2011 is perverse and therefore, I am inclined to set aside the same and consequently permit the petitioner to cross examine the witnesses P.Ws.2,6,7 and 10 either himself or through his counsel. 10.Accordingly, this criminal original petition is ordered and the order dated 26.08.2011 made in Cr.M.P.No.485 of 2011 in S.C.No.250 of 2011 passed by the learned Sessions Judge, Mahalir Neethimantram, Tirunelveli is set aside and the petitioner is permitted to cross examine the witnesses P.Ws.2,6,7 and 10 either by himself or through his counsel. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(Records) /True Copy/ Sub-Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Inspector of Police, Palayamkottai Police Station. 2.The Sessions Judge, Mahalir Neethimantram, Tirunelveli. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. arul rl/4c – 3.1.2012 Crl.O.P.(MD)No.15501 of 2011 19.12.2011 https://hcservices.ecourts.gov.in/hcservices/