1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:19.08.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD) No.5858 of 2011 and M.P.(MD) No.1 of 2011 S.Janaki Banu .. Petitioner/Defacto Complainant Vs. 1.The State of Tamilnadu through The Inspector of Police, AWPS Madurai South crime No.5 of 2007 .. Respondent/Complainant 2.J.Sivakumar 3.M.Jeevarathinam 4.J.Guruvammal 5.R.Sakunthala 6.S.Rajmohan .. Respondents/Accused Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the records relating to the order passed by the learned Judicial Magistrate No.1, Madurai dated 20.04.2011 in Cr.M.P.No.2716 of 2011 in C.C.No.73 of 2007 and set aside the same and allow the application. For Petitioners : Mr.N.Dilipkumar For Respondents : Mr.K.V.Rajarajan, G.A.,(Crl. Side) for R1 Mr.P.Gunasekaran, for R2 to R6 O R D E R This petition has been filed to call for the records relating to the order passed by the learned Judicial Magistrate No.1, Madurai dated 20.04.2011 in Cr.M.P.No.2716 of 2011 in C.C.No.73 of 2007 and set aside the same and allow the application. 2. The learned counsel appearing for the petitioner/defacto complainant would submit that on the basis of the complaint given by the defacto complainant, a case has been registered in crime No.5 of 2007 for the offence under Sections 498(A) I.P.C. and Section 4 of Taminladu Prohibition of Harassment of Women Act and after investigation, the police laid the charge sheet for the offence under Sections 498 (A), 406 and 506(i) I.P.C. and Section 4 of the Dowry Prohibition Act before the learned Judicial Magistrate concerned and the same was taken on file in C.C.No.73 of 2007 and now pending before the learned Judicial Magistrate No.1, Madurai. 3.He would further submit that when the witnesses were in witness box, the prosecution filed an application under Section 91 Cr.P.C. to send for some documents, which are all the earlier complainants given by the defacto complainant and relevant to prove the guilt of the accused and the trial Court considered the said application and dismissed the https://hcservices.ecourts.gov.in/hcservices/ 2 same, against which, the defacto complainant has come forward with this application. He would further submit that any lapse in the investigation should not result in miscarriage of justice and whenever, the Court itself needs to be passed an appropriate direction to secure the ends of justice and hence, he prayed for setting aside the order and to send for the documents. 4.The learned Government Advocate (criminal side) would submit that the documents are vital documents and all are complaints given by the defacto complainant, whenever, the defacto complainant faced the harassment and subsequently, she has given an undertaking and that have been closed. He would further submit that during the pendency, the investigating agency has not seized the documents to mark the same at the time of trial and hence, the prosecution filed the application to send for the documents under Section 91 Cr.P.C., but the trial Court has dismissed the same. He would further submit that the prosecution has not filed any revision against the order of dismissal and the defacto complainant only has come forward with the application stating that those documents are necessary for disposal. 5.The learned counsel appearing for R1 would submit that already P.Ws.1 to 7 were examined and all the witnesses were cross-examined in length and during the cross examination, some of the documents were marked, but, there is no necessity to recall the witness P.W.1 to examine and to mark the documents and now to drag on the case, the defacto complainant has come forward with the present application and hence, he prayed for the dismissal of the application. 6.I have considered the submissions made on either side and perused the entire records received from the learned Judicial Magistrate No.1, Madurai. 7.Considering the rival submissions made on either side, when P.W.1 was in witness box on 11.04.2011, the complaint dated 15.08.2002 given by the defacto complainant has been marked as Ex.P2 and the complaint dated 04.12.2002 has been marked as Ex.P3 and the complaint dated 24.05.2004 has also been marked as Ex.P5, wherein, the petitioner herself herein stated that the matter was amicably settled and they are now living happily and she made a request that the F.I.R. may please be dropped and she has signed the same on 03.09.2004 and the present F.I.R. has been marked as Ex.P6 and accordingly, the previous complaints have been marked as Exs.P2,3 and 5. P.W.1 was examined in chief on 10.12.2007 and subsequently, she was recalled and examined on 03.02.2010. Further she was recalled and cross examined on 11.04.2001 and at that time only, the above said documents were marked. It would clearly show that the main intention of the petitioner is to drag on the proceedings. 8.The accused herein has filed Crl.O.P.(MD) No.3230 of 2011 for early disposal of the case stating that there was no progress after the examination of P.Ws.1 and 2 in the month February 2010 and hence, this Court by an order dated 11.03.2011, directed the learned Judicial Magistrate No.1, Madurai to dispose of the case within a period of four months from the date of receipt of that order and during the pendency of the criminal original petition only, the prosecution filed C.M.P.No.2716 of 2001 before the learned Judicial Magistrate No.1, Madurai, where the https://hcservices.ecourts.gov.in/hcservices/ 3 same dismissed, against which, the present application has been filed before this Court. Since, already the documents sought for by the prosecution have been marked and even though charge sheet has been filed in the year 2007, P.W.1 was examined in 10.12.2007, the prosecution was kept quiet all along, has filed the petition only on 10.01.2011. Hence, the trial Court has considered all the aspects in a proper direction and come to the correct conclusion and dismissed the application. 9.At this juncture, it is appropriate to consider the decision relied upon by the counsel appearing for the petitioner in S.Shankar Vs. State rep. by the Sub Inspector of Police, Chennai and others reported in (2007) 1 M.L.J. (Crl.) 969. The Ratio discidendi is as follows: "During the course of a criminal trial, if any fresh material comes to light there cannot be any prohibition in receiving the same for proving or disproving the allegation made by the prosecution". There is no quarrel over the proposition. But, sufficient opportunity has been given to the petitioner. Even though, she was examined in chief on 10.12.2007, she has not taken any steps till the dismissal of C.M.P.No.2716 of 2011, which was filed by the prosecution. The State has not preferred any revision, but the petitioner/P.W.1 has come forward with the present application. 10.Considering the above said facts and circumstances of the case, I am of the view that because of the matrimonial dispute, she wants to drag on the proceedings and therefore, I do not find any merits in the application and the same deserves to be dismissed and accordingly, this criminal original petition is dismissed. However, since 313 Cr.P.C. questioning has already been over, the learned Judicial Magistrate No.1, Madurai is directed to dispose of the case within a period of one month from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is also dismissed. Sd/- Assistant Registrar (AE) /True copy/ Sub Assistant Registrar To 1.The Judicial Magistrate No.1, Madurai. 2.The Inspector of Police, ALL WOMEN POLICE STATION, Madurai South. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy to The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. (For watching the Report) +1CC TO M/S.P.GUNASEKARAN, ADVOCATE SR.28488 Arul : SR : 29.08.2011 : 3p/6c order made in Crl.O.P.(MD)No.5858 of 2011 19.08.2011 https://hcservices.ecourts.gov.in/hcservices/