1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.08.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Revision Case (MD).No.667 of 2011 & M.P.(MD).No.1 of 2011 Altrin Joseph . . Petitioner/Accused Vs. State through The Inspector of Police, Moondradaippu, Tirunelveli District. Crime No.99 of 2008 .. Respondent/Complainant Prayer:- Criminal Revision Petition is filed to call for the records in Cr.M.P.No.439 of 2011 and to set aside the order dated 22.07.2011 passed in Cr.M.P.No.439 of 2011 in S.C.No.283 of 2009 on the file of the Mahila Court, Tirunelveli. For Petitioner : Mr.J.Ashok For Respondent : Mr.P.Kandasamy Government Advocate (Crl.Side) ORDER This Criminal Revision Petition has been filed to call for the records and to set aside the order dated 22.07.2011 passed in Cr.M.P.No.439 of 2011 in S.C.No.283 of 2009 on the file of the Mahila Court, Tirunelveli. 2. The petitioner is the accused in S.C.No.283 of 2009, on the file of the Mahila Court, Tirunelveli. When the case was posted for arguments after questioning the accused under Section 313 Cr.P.C., he filed an application under Section 231(2) of Cr.P.C. to recall P.Ws.1 and 4 for enabling him to further cross-examine them. In the petition, he has alleged that certain important aspects have been omitted to be elicited by P.Ws.1 and 4 and hence, they have to be recalled and an opportunity may be accorded to him to establish his contention. 3. In the counter affidavit filed by the State, it is alleged that P.Ws.1 and 4 have been cross-examined by the accused side with reference to all the aspects, that the petitioner does not disclose for what reason they have to be recalled, that the petition has been filed to fill up the lacuna in the evidence, that the petition has been filed to protract the proceedings and hence, it has to be dismissed. 4. The learned Trial Court Judge dismissed the application by observing that as per the representation of the Additional Public Prosecutor, it is seen that the accused side is attempting to compromise https://hcservices.ecourts.gov.in/hcservices/ 2 the matter and in order to intimate the Court about the said compromise, the present steps have been taken, that P.W.1 has identified the accused during her evidence and that there is no ground to allow the application. 5. Mr.J.Ashok, the learned counsel appearing for the petitioner would submit that even though the petition is bereft of reason for recalling the witnesses, the petitioner may be accorded an opportunity to establish his defence and even if the petition is allowed, the prosecution side will not be prejudiced. 6. The learned Government Advocate (Criminal Side) appearing for the respondent would contend that the petition is not maintainable in view of the non-furnishing of reason for recalling the witnesses, that there is no infirmity either factually or legally in the order passed by the Court below and hence, the petition may be dismissed. 7. It is true that the petition is silent about the reason for which P.Ws.1 and 4 have to be recalled. However, before the Trial Court, it was argued by the learned counsel for the petitioner that certain questions with regard to the identity of the petitioner have to be put to the witnesses. The learned Additional Public Prosecutor appeared before the Court below could have stated that the petitioner has gained over P.Ws.1 and 4 and made them to depose before the Court to say that the accused is not known to them and that they have compromised the matter outside the Court. 8. It is significant to state that neither the above said details with regard to the hearing over the witnesses nor compromise have been pleaded in the counter. The Court below has referred to and followed a decision of the Hon'ble Supreme Court reported in (2007) 11 Supreme Court Cases 191, (Rama Paswan and others v. State of Jharkhand). In the said case, a compromise was reached between the parties in a case registered under Section 376 IPC and a compromise petition was annexed to the petition under Section 482 of Cr.P.C. before the High Court and the High Court did not accept the prayer for recalling the victim since under Section 376 IPC is not compoundable. 9. In the present case, the facts are distinguishable. It was the oral representation by the learned Additional Public Prosecutor before the Court below that the accused has compromised the matter with P.Ws.1 and 4 outside the Court. There is no material on the side of the prosecution to show the same nor had it been pleaded in the counter filed by him. Acting upon the above said oral submission, the Court below proceeded to discuss that P.Ws.1 and 4 should have been threatened and that an agreement should have been reached between them to favour the accused and that only to show before the Court that the matter has been compromised, the present attempt to recall the witnesses has been taken. 10. In the present case, there is no material or any evidence to infer that the matter has been compromised between the parties. From the arguments of the petitioner's counsel, it transpires that the petitioner sought to put some questions with regard to the identity of the accused. When this circumstance is taken into consideration, this Court is of the opinion that the request cannot be turned down. This Court is of the view that one more opportunity has to be extended to the petitioner to https://hcservices.ecourts.gov.in/hcservices/ 3 establish his contention. In such view of this matter, the order passed by the Court below is liable to be set aside and it is accordingly set aside. In the result, the Criminal Revision Case is allowed setting aside the order challenged before this Court. The petition is Cr.M.P.No.439 of 2011 is allowed. Consequently, connected miscellaneous petition is closed. srm Sd/- Assistant Registrar /True copy/ Sub Assistant Registrar To 1.The Judge, Mahila Court, Tirunelveli. 2.The Inspector of Police, Moondradaippu, Tirunelveli District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Criminal Revision Case (MD).No.667 of 2011 Dated:11.08.2011 3P/4C RPB 29.08.2011 https://hcservices.ecourts.gov.in/hcservices/