1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated :09-03-2011 CORAM The Hon'ble Mr.Justice R.S.Ramanathan Crl.O.P.(MD)Nos.2772 and 2781 of 2011 and M.P(MD)No.1 of 2011 In Crl.O.P(MD)No.2772 of 2011: Mahendra Poobathi : Petitioner/De-facto Complainant VS. State, rep by The Inspector of Police, Panagudi Police Station, Tirunelvei District. (Crime No.90 of 2002) :Respondent/Complainant Prayer in Crl.O.P(MD)No.2772 of 2011: Criminal Original Petition filed under Section 482 of Cr.P.C. to direct the Assistant Sessions/Sub Court, Valliyur, to complete the trial and deliver the judgment on merits within the time to be fixed by this Court in S.C.No.399 of 2008 on the file of the Assistant Sessions Court, Valliyur. Crl.O.P(MD)No.2781 of 2011:- Venkatesh Lal :Petitioner/Accused No.4 vs. The State rep. by The Inspector of Police, Panagudi Police Station, Tirunelveli District. (Crime No.90 of 2002) :Respondent/Complainant Prayer in Crl.O.P(MD)No.2781 of 2011: Criminal Original Petition filed under Section 482 of Cr.P.C. to direct the Assistant Sessions Judge, Valliyur, to grant sufficient opportunity for the joint trial in S.C.No.399 of 2008 with that of the petitioner's private complaint in Cr.M.P.No.830 of 2011, on the file of the Judicial Magistrate, Valliyur. For Petitioner in : Mr.P.Senthurpandian Cr.O.P.No.2772/2011 For Petitioner in Crl.O.P.No.2781/2011 : Mr.C.Dhanaseelan For Respondent in both the Crl.O.P. : Mr. S.MuthuVenkatesan Government Advocate (Criminal Side) https://hcservices.ecourts.gov.in/hcservices/ 2 COMMON ORDER Crl.O.P(MD)No.2772 of 2011:- This petition is filed seeking for a direction directing the Assistant Sessions Judge, Valliyur, to expedite the trial within a time frame. 2.It is submitted by the learned counsel appearing for the petitioner that though the prosecution witnesses were examined long back, at the instance of the accused persons, the learned Assistant Sessions Judge, Valliyur, adjourned the case, even though, the witnesses were present and therefore, a direction may be given to the Assistant Sessions Judge, Valliyur, to expedite the trial. 3.The learned Government Advocate (Criminal Side) has submitted that the witnesses were present on 24.11.2010, 19.01.2011, 23.02.2011, 25.02.2011 and 02.03.2011 and all those days, the accused persons filed applications for adjournment stating that they have filed a private complaint and both the cases were case and counter and therefore, till the complaints filed by the accused persons against the petitioner herein and others are taken on file, the present case shall not be proceeded with. Therefore, the learned Assistant Sessions Judge, Valliyur, has adjourned the case. 4.Crl.O.P.(MD)No.2781 of 2011:- This petition is filed by the petitioner seeking for a direction, directing the learned Assistant Sessions Judge, Valliyur, to grant sufficient opportunity to the petitioner herein, who is the 4th accused in SC No.399 of 2008 and the trial in SC No.399 of 2009 may be clubbed with the private complaint in Cr.M.P.No.830 of 2011. 5.According to Mr.C.Dhanaseelan, the learned counsel for the petitioner, the private complaint given by the complainant viz., the 4th accused in SC No. 399 of 2008 was also in respect of the same incident and both the cases are case and counter in nature and therefore, the trial in S.C.No.399 of 2008 should not be proceeded. 6.According to Mr.P.Senthurpandian, the learned counsel appearing for the petitioner in Crl.O.P.(MD)No.2772 of 2011, the complaint given by the petitioner in Crl.O.P.(MD)No.2781 of 2011 was already referred as 'Mistake of Fact' in the year 2003 and eight years latter, they have filed the private complaint and both the cases are not in the nature of case and counter. 7.The learned counsel appearing for the petitioner in Crl.O.P.(MD) No.2781 of 2011 submitted that though the referred charge sheet was filed in the year 2003, it was received by the Court only in the year 2007 and thereafter, they have filed a private complaint. 8.Admittedly, the private complaint given by the petitioner in Crl.O.P.(MD)No.2781 of 2011 is in the stage of issuing process and the learned Judicial Magistrate, Valliyur, has not taken a decision on the question of issuing of process and only the witness were examined. On the other hand, in SC No.399 of 2008, PW1 to 10 were already examined and after the accused were questioned, they filed application under section 311 of Cr.P.C for recalling the witnesses and even after the presence of witnesses before the Court, the witnesses were not examined and the case was adjourned. https://hcservices.ecourts.gov.in/hcservices/ 3 9.According to me, when the witnesses were recalled at the instance of the accused and when the witnesses were present, it is the duty of the Assistant Sessions Court to examine those witnesses and if the accused persons were not ready to cross examine the witnesses, the learned Assistant Sessions Judge, Valliyur, ought to have closed the evidences of those witnesses. Unfortunately, without following the procedure, the learned Assistant Sessions Judge, Valliyur, mechanically adjourned the case and the conduct of the learned Assistant Sessions Judge, Valliyur, is highly condemnable and the learned Assistant Sessions Judge, Valliyur, failed in his duty in adjourning the case, even though the witnesses were present. 10.Hence, I direct the learned Assistant Sessions Judge, Valliyur, to proceed with the trial in SC No.399 of 2009 on 06.04.2011 and complete the trial within a period of two months and if the witnesses were present, the learned Assistant Sessions Judge, Valliyur, shall mark the presence of the witnesses and if the accused were not ready to cross examine the witnesses, the witnesses may be discharged and the case may be proceeded further. With the above observation, the Crl.O.P.(MD)No.2772 of 2011 is ordered. 11.In so far as Crl.O.P.(MD)No.2781 of 2011 is concerned, the prayer sought for cannot be considered at this stage and only after action is taken by the learned Judicial Magistrate, Valliyur, on the private complaint, it is open to the petitioner to take appropriate action. 12.Mr.C.Dhanaseelan, the learned counsel appearing for the petitioner in Crl.O.P.(MD)No.2781 of 2011, cited a judgment reported in MANU/TN/0638/2003 in Crl.O.P.No.4801 of 2003 and Crl.O.P.No.1717 of 2003, dated 04.04.2003 between Rajan, Arumuga Chettiar, Bharathi and Joly Rajan vs. State, by the Inspector of Police and submitted that in the reported judgment, this Court has directed that the counter case shall not be proceeded till the private complaint filed by the accused is taken on file. He, therefore, submitted that the trial in SC No.399 of 2008 can be kept pending for few months so as to enable the petitioner to have his case tried jointly along with S.C.No.399 of 2008. 13.According to me, the judgment relied upon by the learned counsel appearing for the petitioner in Cr.O.P.(MD)No.2781 of 2011 cannot be applied to the facts of this case. In the reported case, both the cases are in PRC stage and therefore, this Court has directed that one case can wait till orders are passed in the other case. But in the present case in SC No.399 of 2008, witnesses were examined long back and from 29.04.2010, the case was adjourned for the cross examination of the witnesses and even after the witnesses were present, they were not cross-examined. Hence, the above judgment cannot be applied to the facts of this case. If the petitioner is able to convince, the learned Judicial Magistrate on the basis of the statement of witnesses examined by the petitioner, it is open to the petitioner to proceed further with the trial, after the case has been committed. https://hcservices.ecourts.gov.in/hcservices/ 4 14.In the result, Crl.O.P.(MD)No.2772 of 2011 is ordered and the Crl.O.P.(MD)No.2781 of 2011 is dismissed. The learned Assistant Sessions Judge, Valliyur, is directed to secure the presence of the witnesses and proceed with the cross examination on 06.04.2011 and on subsequent dates and complete the trial within a period of two months from 06.04.2011. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To, 1.The Assistant Sessions Court, Valliyur. 2.The Judicial Magistrate, Valliyur. 3. The Inspector of Police, Panchayat Police Station, Tirunelveli. 4.The Government Advocate (Criminal side), Madurai Bench of Madras High Court, Madurai. Copy to : The Section Officer, 'B' Section, Madurai Bench of Madras High Court, Madurai. er SR : 11.03.2011 : 4p/6c Common order made in Crl.O.P.(MD)Nos.2772 and 2781 of 2011 and M.P(MD)No.1 of 2011 09.03.2011 https://hcservices.ecourts.gov.in/hcservices/