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2014 DIGILAW 3990 (MAD)

N. Dhamodharan v. B. Usha

2014-10-27

C.T.SELVAM

body2014
ORDER 1. This revision challenges the order of the Judicial Magistrate, Fast Track Court at Magisterial level at Thiruvallur passed in C.M.P.No.505 of 2014 in C.C.No.327 of 2012 on 10.07.2014. 2. The petitioner is the accused in C.C.No.327 of 2012 on the file of Fast Track Court at Thiruvallur, an action initiated informing offences under Section 138 of the Negotiable Instruments Act. The prosecution has examined one Syed Usain, a Bank Officer as P.W.2. 3. The petitioner moved a petition in C.M.P.No.188 of 2014 seeking to recall P.W.2 for the purpose of cross examination and the same was allowed under orders dated 12.03.2014. However, P.W.2, having been in hospital and undergone an operation for brain tumour, was unable to attend the Court below. Hence, the petitioner moved C.M.P.No.505 of 2014 informing that P.W.2 had undergone a major operation for brain tumour, such was the reason for his inability to present himself before Court and hence, his examination by appointment of Commission was necessary. 4. The Bank Authorities had confirmed the inability of P.W.2 to present himself for cross-examination owing to the operation undergone by him. The Court below dismissed C.M.P.No.505 of 2014 since the petitioner sought examination of P.W.2 by an Advocate Commissioner and the same was not permissible since Section 285and 286 Cr.P.C., stipulated that the Commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be and upon receipt of the Commission, the Chief Metropolitan Magistrate of Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and record the evidence. Further reason informed by the Magistrate was that the petitioner had not averred in the petition in what way the evidence of P.W.2 was relevant or essential. 5. When a petition filed to recall a witness stands allowed and it is found that absence of such witness before the Court is well-explained, it is the duty of the Magistrate to exercise powers and issue a Commission towards carrying out the purpose of allowing the recall petition, which in the instant case was to make available the evidence of the witness in cross-examination. Faced with the position that the Code did not provide for appointment of an Advocate Commissioner, the proper course would be to act in keeping therewith and direct issue of Commission as envisaged in the Code instead of merely dismissing the petition on technicalities. The order of the Court below may also be faulted as one which in effect requires the petitioner/accused to reveal his defence. For the aforesaid reasons, this Criminal Revision stands allowed. The order of learned Judicial Magistrate, Fast Track Court at Magisterial level at Thiruvallur, passed in C.M.P.No.505 of 2014 in C.C.No.327 of 2012 on 10.07.2014 stand set aside. The Magistrate shall now direct a Commission to the Chief Judicial Magistrate, Thiruvallur, who inturn shall appoint a Judicial Magistrate to proceed to the place of residence of witness and record his evidence in keeping with Section 286 and 287 Cr.P.C. The petitioner shall pay a sum of Rs.5,000/- (Rupees five thousand only) in costs to the Judicial Magistrate, Fast Track Court at Magisterial level at Thiruvallur. Consequently, connected miscellaneous petition is closed. Revision allowed.