IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.418 of *2008 and M.P.No.1 of 2008 Subramani ... Petitioner Vs. The State of Tamilnadu rep. by the Sub-Inspector of Police Nagarasampatti Police Station Krishnagiri District ... Respondent This Criminal Revision Case has been filed under Section 397 read with 401 of Criminal Procedure Code to partly set aside the judgment dated 19.09.2006 passed in Cr.A.No.5/2004 on the file of the I Additional Sessions Judge, Krishnagiri to the extent of remanding the matter to the learned Judicial Magistrate and confirm the order setting aside the judgment dated 23.01.2004 in C.C.No.187/2002 on the file of Judicial Magistrate, Pochampalli. For Appellant : Mr.S.M.Subramaniam For Respondent : Mr.A.Saravanan, Govt. Advocate (Crl.Side) O R D E R This Criminal Revision Case is directed against the judgment of the learned I Additional Sessions Judge, Krishnagiri, dated 19.09.2006 made in Cr.A.No.5/2004 remanding C.C.No.187/2002 to the file of the trial court, namely the court of the Judicial Magistrate, Pochampalli after setting aside the conviction recorded and the sentence imposed by the trial court for offences punishable under Sections 15(2)(b) and 3 of Indian Medical Council Act and Section 354 of IPC. 2. The accused, who was charged with committing the said offences before the trial court faced trial and at the end of the trial, he was found guilty and convicted of the said offences by the trial court on 23.11.2004. As against conviction and sentence, the petitioner herein (accused) preferred an appeal in Cr.A.No.5/2004 before the I Additional Sessions Judge, Krishnagiri. The learned I Additional Sessions Judge, Krishnagiri, after hearing, held that the conviction recorded by the trial court could not be sustained in view of the fact that the Investigating Officer was not examined and the valuable right of eliciting certain facts from the Investigating Officer was denied to the petitioner https://hcservices.ecourts.gov.in/hcservices/ herein/accused. However, holding that the non-examination of the Investigating Officer should not automatically result in giving a clean chit to the accused and that in order to avoid miscarriage of justice, the case was remanded back to the trial court with a direction to give opportunity to examine the Investigating Officer and then decide the case on merit. The said judgment and order of remand of the lower appellate court made in Cr.A.No.5/2004 dated 19.09.2006 is impugned in this Criminal Revision Case. 3. Mr.S.M.Subramaniam, learned counsel for the petitioner would contend that the lower appellate court, after coming to the conclusion that the conviction based on the available evidence adduced before the trial court could not be sustained, ought to have acquitted the petitioner/accused and ought not to have remanded the case for filling up the lacuna caused in the prosecution case by directing the trial court to give an opportunity to examine the Investigating Officer. It is the further contention of the learned counsel for the petitioner that the court should not have acted as a prosecuting agency and for that reason also, the order of remand remitting the case back to the trial court for fresh disposal shall stand vitiated. 4. This court heard the submissions made by Mr.A.Saravanan, learned Government Advocate (Crl.Side) representing the respondent/State. The materials available on record were also perused. 5. The conviction recorded by the trial court was interfered with and set aside by the lower appellate court on the sole ground that the Investigating Officer was not examined as a witness on the side of the prosecution. The appelate court has observed that the examination of the Investigating Officer would provide a reasonable opportunity to the accused to elicit certain facts and contradictions pointing towards the innocence of the accused or at least the existence of reasonable suspicion regarding the charges made against the accused and that hence on the above said ground alone, without going into the merits of the case, the lower appellate court has chosen to set aside the judgment of conviction. 6. It should also be noticed that the prosecution evidence was suo motu closed by the trial court without there being an exercise of option on the part of the prosecution to dispense with the examination of the Investigating Officer. Had it been so, the contention of the learned counsel for the petitioner would have got some substance in it. On the other hand, the trial court having chosen to suo motu close the prosecution evidence without the Investigating Officer being examined, had arrived at a conclusion that the charges framed against the accused stood proved without adverting to the fact of non-examination of the Investigating Officer. Under such circumstances alone, the lower appellate court has chosen to set aside the conviction and remit the case back to the trial court for fresh disposal after giving an opportunity to the prosecution to examine the Investigating https://hcservices.ecourts.gov.in/hcservices/ Officer. The court before suo motu closing the evidence of prosecution, should have exhausted the provisions for compelling the attendance of the witness. In case of failure on the prosecution to take such effective steps to bring the witness using the coercive steps taken by the court, then the said fact can be taken adverse note of against the prosecution and not against the accused. It will result in miscarriage of justice, if the accused is straight away acquitted, besides setting aside the conviction, for non-examination of the Investigating Officer without affording an opportunity to the prosecution, which was denied by the trial court, to examine the Investigating Officer. This court finds no defect or illegality in the judgment of the trial court remitting back the case to the trial court for fresh disposal after giving an opportunity to the prosecution to examine the Investigating Officer. 7. There is no merit in the Criminal Revision Case and the same deserves to be dismissed. Accordingly dismissed. Consequently, connected miscellaneous petition is also closed. 8. However, the learned Judicial Magistrate, Pochampalli is directed to expedite the trial and dispose of the case, as early as possible, in any event not later than three months from the date of receipt of a copy of this order and records. asr Sd/- Asst. Registrar 25.02.2010 *Corrected to be issued sd/- Assistant Registrar 11.03.2010 //True Copy// Sub Asst. Registrar To 1) The I Additional Sessions Judge, Krishnagiri To be 2) -Do-Thro The Principal Sessions Judge, Krishnagiri substituted 3) The Judicial Magistrate, Pochampalli the order 4) The Chief Judicial Magistrate, Krishnagiri already 5) The Sub Inspector of Police, despatched Nagarasampatti Police Station, Krishnagiri on 08.3.2010 6) The Public Prosecutor, High Court, Madras-600 104 7) The Section Officer, CRL Section, High Court, Madras. + 1 cc to M/s. S. M. Subramaniam, Advocate SR No.10464 AKR(CO) SR/25.2.2010 SRA/11.3.2010 Order in Crl.R.C.No.418/2008 https://hcservices.ecourts.gov.in/hcservices/