1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.09.2011 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Crl.O.P.(MD).No.10093 of 2011 and M.P.(MD) No.1 of 2011 Chetti Mariappan @ Mariappan ... Petitioner -Vs- State through The Sub-Inspector of Police, Ayikudi Police Station, Tirunelveli District. Crime No.148 of 2008. ... Respondent PRAYER: Petition filed under Section 482 of the Code of Criminal Procedure, praying to set aside the order dated 16.07.2011 passed in Cr.M.P.No.410 of 2011 in S.C.No.381 of 2009 on the file of the Mahila Court, Tirunelveli. For Petitioners : Mr.J.Ashok For Respondent : Mr.K.V.Rajarajan Government Advocate (Crl. Side) O R D E R The petitioner is the accused in S.C.No.381 of 2009, pending on the file of Mahila court, Tirunelveli. An application was filed under Section 311 of Cr.P.C., seeking permission to cross-examine P.Ws.1 to 11 as the said witnesses have not been cross-examined in view of the inability of the lawyer representing the petitioner to represent and appear on that day. The said application has been dismissed by the trial Court holding that the power under Section 311 of Cr.P.C. cannot be used for cross-examination. Challenging the same, the present petition has been filed. 2. Admittedly, the prosecution witnesses have not been cross- examined by the petitioner as his lawyer was not available on that day. Therefore, on those circumstances, an application was filed seeking permission to cross-examine the witnesses. Section 231(2) of Criminal Procedure Code, 1973 provides for cross-examination of witnesses. Merely because the petition has been filed under Section 311 of Cr.P.C., the Court below ought not to have rejected the application. After all, the petitioner wants an opportunity to cross- examine the witnesses. A perusal of Section 311 read with Section 231 of Criminal Procedure Code, 1973 would amplify the fact that if the Court is satisfied that an examination of the party is required, then the said Court will have to exercise discretion. When admittedly P.Ws.1 to 11 have not been cross-examined by the petitioner, the Court below ought to have granted an opportunity to cross examine https://hcservices.ecourts.gov.in/hcservices/ 2 them. Under those circumstances, this Court is of the view that the petitioner will have to be given an opportunity to cross-examine P.Ws.1 to 11. However, the petitioner cannot be permitted to drag on the case as admittedly the mistake lies with the petitioner. 3. Therefore, while setting aside the order passed by the Mahila Court, Tirunelveli in Cr.M.P.No.410 of 2011 in S.C.No.381 of 2009 dated 16.07.2011, if the petitioner has not availed the opportunity to cross examine the witnesses produced by the prosecution, namely P.Ws.1 to 11 on the date of their appearance to be fixed by the trial Court, then the trial Court can proceed with the matter with the available materials. 4. Accordingly, the trial Court is direct to fix a hearing date for the attendance of the prosecution witnesses. On such appearance of the said witnesses, the petitioner shall cross-examine them. If the petitioner has failed to cross-examine the witnesses of the prosecution, the trial Court can proceed further with the matter. This petition is allowed with the above observations. Consequently, connected M.Ps. are closed. Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar To 1.The Sub-Inspector of Police, Ayikudi Police Station, Tirunelveli District. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 3.The Sessions Judge, Mahila Court, Tirunelveli Crl.O.P.(MD).No.10093 of 2011 and M.P.(MD) No.1 of 2011 sj SMA/19.10.2011/4C/2P https://hcservices.ecourts.gov.in/hcservices/