1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.03.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD).No.1805 of 2011 And M.P.(MD).No.1 of 2011 1. Ayyappan 2. R.Nellikai Mani @ Mani @ Manikandan 3. Mani @ Subramanian 4. Murugan 5. Mari @ Mariappan ... Petitioners/Accused No.1 to 5 Vs State rep. by Inspector of Police Tirunelveli Town P.S., Tirunelveli District ... Respondent PRAYER: Petition filed under Section 482 of the Code of Criminal Procedure, to transfer the S.C.No. 109 of 2009 on the file of the Special District and Sessions Judge, Fast Track Court No.II, Tirunelveli. For Petitioner: Mr.T.Senthilkumar For Respondent: Mr.L.Murugan Government Advocate (Crl. Side) O R D E R This Criminal Original Petition has been filed by the petitioners seeking for the transfer of S.C.No. 109 of 2009 on the file of the Special District and Sessions Judge, Fast Track Court No.II, Tirunelveli. 2. Heard Mr.T.Senthilkumar, learned counsel appearing for the petitioner and Mr.L.Murugan, learned Government Advocate (Criminal Side) appearing for the respondent. 3. The learned counsel for the petitioner would submit in his argument that the petitioners are ranked as A-1 to A-5 in S.C.No. 109 of 2009 pending on the file of the learned Special District and Sessions Judge, Fast Track Court No.II, Tirunelveli and the trial has been commenced and during the time of trial, the petitioners were not given opportunity and therefore, they have sought for transfer of the said case from the file of the said Court to some other Court. He would further submit in his argument that the second accused, namely, Nellikai Mani @ Mani @ Manikandan, has filed a transfer Petition, in Crl.O.P.No.11121 of 2010 and it was disposed of by this Court, on 26.10.2010, with a direction to the Presiding Officer that the petitioners should have given opportunity to put-forth their defence. He would further submit in his argument that on the basis of the said https://hcservices.ecourts.gov.in/hcservices/ 2 direction, the said Court had taken up the trial, but had not given opportunity to the petitioners to examine the defence witnesses. He would further submit in his argument that the said disobedience of the directions by the said Court is against the orders passed by this Court on 26.10.2010, had affected the right of the petitioners to defend their case. He would further submit in his argument that the present case was filed before this Court, on 10.02.2011, but it has been taken on file on 14.02.2011 and this Court has passed an interim stay in the morning at 11.00 a.m., and the same was communicated immediately through phone by the Registry by 11.10 a.m., to the said Court, but, the said Court had pronounced the Judgment by 11. 50 a.m., knowing full well about the order of interim stay passed by this Court. He would further submit in his argument that at the time of receiving the copy of the Judgment, the petitioners put the time and therefore, it is a right case to quash the said Judgment and to order re-trial in order to avoid abuse of process of law and to enforce the order passed by this Court. 4. He would further submit in his argument that the said direction issued by this Court, on 26.10.2010, at an earlier occasion, was also not obeyed by the said Court and this time also, the order of the interim stay passed by this Court, on 14.02.2011, was not heeded by the Lower Court. Therefore, he would request the Court that a direction may be issued against the Lower Court in respect of the case in S.C.No. 109 of 2009 and to order for quashment of the Judgment passed, on 14.02.2011 and also to transfer the case to some other competent Court for re-trial. 5. The learned Government Advocate (Crl. Side) would submit in his argument that the Judgment was pronounced by the said Court, namely, learned Additional District and Sessions Judge, Fast Track Court No.II, Tirunelveli, in S.C.No. 109 of 2009, on 14.02.2011 and the complaints made by the petitioners against the said Court may be verified from the reports submitted by the said Court and to pass suitable orders. He would further submit in his argument that he would abide to any order likely to be passed by this Court. 6. I have given anxious consideration to the arguments advanced on either side. 7. The complaint of the petitioners is that the Judgment was pronounced by the Lower Court on 14.02.2011 after the communication of the stay order passed by this Court, by 11.00 a.m. The Lower Court has submitted a detailed report regarding the time of the pronouncement of the Judgement and the compliance of the order passed by this Court. Similarly, the original records were also called for verification. On going through the records and the report of the Lower Court, this Court could see that the Judgment copies were received by the accused persons on 14.02.2011 by 11.50, 51, 52 a.m., and so on. In order to verify as to whether the Judgment was pronounced only at that time, this Court had also asked for a further https://hcservices.ecourts.gov.in/hcservices/ 3 report with the current fair diary of the said Court and the same was also received. 8. The accusation of the petitioners against the Lower Court was that the Lower Court has not given opportunity to examine the defence witnesses on their side and thereby closed the evidence and posted the case for Judgment on 14.02.2011. Apart from that, it has been further complained that the Lower Court had pronounced the Judgment by 11.50 a.m., after the interim stay order was passed by this Court, on 14.02.2011 by 11.00 a.m., which was communicated by the Registry, by 11.10 a.m. It has also been stressed that the Lower Court has not only obeyed the earlier order passed by this Court in Crl.O.P.No. 11121 of 2010, on 26.10.2010, but also the order passed by this Court, on 14.02.2011. At this stage, we have to see whether the order passed by this Court, on 14.02.2011, has been obeyed or not by the Lower Court? 9. I have carefully perused the records. I could see that the accused persons have received the copy of the Judgment by 11.50, 51, 52 a.m., and so on. However, the Lower Court had submitted in its report that the Judgment was pronounced at 10.30 a.m., on 14.02.2011 and thereafter only, the Registry of the Hon'ble High Court had communicated the stay order by 11.10 a.m. The current fair diary of the Lower Court has been called for in order to verify the report submitted by the said Court. On a careful perusal of the said diary, I could see that the Judgment in S.C.No. 109 of 2009 has been written as the first result of the case in the said diary. If really the Judgment would have been pronounced by 10.30 a.m., then the result of the Judgment of the said case would have been written in the current fair diary of the said Court after the writing of other results. There is no dispute that the petitioners have received the copy of the Judgment by 11.50, 51, 52 a.m., and so on. It is not necessary that the copies of the Judgment are to be immediately served on the pronouncement of the Judgment at the time of pronouncement. The Judgment would have been served upon the petitioners by 11.50, 51, 52 a.m., after the pronouncement of Judgment prior to the said timing. If really the Judgement has been pronounced by 11.50 a.m., the petitioners could have also written the time in the answers given by them in the question and under Section 313 Cr.P.C. regarding the question of sentence. I could not find on what time the pronouncement of the Judgment was done. 10. In the said circumstances, I have to accept the report of the Lower Court in respect of the pronouncement of the Judgment at 10.30 a.m., on 14.02.2011. However, the main reason for transfer of the case from the file of the said Court to any other competent Court was that the said Court had not obeyed the orders of this Court made in Crl.O.P.No.11121 of 2010, dated 26.10.2010 by not giving any opportunity to the petitioners to examine the defence witness. In view of the disposal of the said case on 14.02.2011, this Court cannot go into the question of non-compliance of the order passed by https://hcservices.ecourts.gov.in/hcservices/ 4 this Court as stated earlier. 11. However, the petitioners are not remediless. The petitioners are at liberty to raise all the grounds raised here before the Appellate Court and to seek their relief in the appeal, if so advised to file. Therefore, this Court is not apprasing the merits on the allegations made against the Lower Court regarding the non-compliance of the earlier order passed by this Court for directing to give due opportunity to the accused persons to stated their evidence. 12. With the aforesaid direction, the Petition filed by the petitioners seeking for transfer of the case in S.C.No. 109 of 2009 on the file of the Special District and Sessions Judge, Fast Track Court No.II, Tirunelveli, to any other Court is dismissed as infructuous. Consequently, connected Miscellaneous Petition is also dismissed. 13. The Registry is directed to dispatch the records received from the Lower Court immediately. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1. The Special District and Sessions Judge Fast Track Court No.II, Tirunelveli 2. The Inspector of Police Tirunelveli Town P.S., Tirunelveli District 3. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai +1cc to Mr.T.Senthilkumar, Advocate, Sr.No.11257 Copy to: The Section Officer, Crl.Section, Madurai Bench of Madras High Court, Madurai Crl.O.P.(MD).No.1805 of 2011 And M.P.(MD).No.1 of 2011 03.03.2011 vsg SMA/28.03.2011/6C/4P https://hcservices.ecourts.gov.in/hcservices/