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2016 DIGILAW 910 (MAD)

P. Subramanian v. State Rep. by The Inspector of Police, District Crime Branch, Trichy

2016-03-03

P.N.PRAKASH

body2016
ORDER : This petition has been filed to set aside the order dated 08.12.2015 passed in C.M.P.No.2920 of 2010 in C.C.No.4 of 2002 on the file of the Principal District Munsif-cum-Judicial Magistrate Court, Lalgudi by allowing the present Criminal Original Petition. 2. It is seen that the petitioners are facing trial in C.C.No.4 of 2002 on the file of the learned Principal District Munsif-cum-Judicial Magistrate, Lalgudi for offences under Sections 408, 418 and 477A r/w 34 IPC. The trial commenced in the year 2002 and the prosecution evidence was closed by the learned Magistrate on 04.05.2012. Statements of the accused were recorded under Section 313 Cr.P.C. and the argument on either side was heard on 30.05.2012 and the matter was posted on 11.06.2012 for judgment. At that time, the Investigating Officer appears to have filed an application under Section 311 Cr.P.C. for examining L.Ws.4 to 19 and L.W.22. In view of the fact that the application was filed, the judgment was not delivered by the Trial Court. However, the accused filed strong objections for the application filed by the prosecution under Section 311 Cr.P.C., on the ground that it will cause serious prejudice to them, if those witnesses are examined. 3. The Trial Court, by an order dated 08.12.2015 in C.M.P.No. 2920 of 2010 (it must presumably be C.M.P.No.2920 of 2012) allowed the prayer of the prosecution, aggrieved by which, the accused have approached this Court. 4. Mr.G.R.Swaminathan, learned counsel for the petitioners / accused, by referring to the judgment of the Supreme Court in the case of Natasha Singh vs. Central Bureau of Investigation (State), reported in (2013) 5 SCC 741 , has submitted that it is the bounden duty of the prosecution to explain as to how the evidence of those witnesses would be essential to adjudge the case and undue prejudice will be caused to the accused, if the said witnesses are examined, inasmuch as the accused have open up the defence by making their submissions, after they were examined under Section 313 Cr.P.C. 5. This Court gave its anxious consideration to the submissions, made by Mr.G.R.Swaminathan. 6. This Court gave its anxious consideration to the submissions, made by Mr.G.R.Swaminathan. 6. As regards the power of the Court under Section 311 Cr.P.C., the issue is no more res integra and in view of the clear mandates of Section 311 Cr.P.C., which states that the Court has the power to examine the witnesses at any stage of any inquiry during trial, which means that even after hearing the argument, before a judgment is passed, the application under Section 311 Cr.P.C. can be entertained. The Hon'ble Supreme Court in the case of Rajendra Prasad vs. The Narcotic Cell through its Officer in-Charge, Delhi, [1999 (3) Crime 106 (SC)], has stated that the defence will always raise the plea of undue prejudice, when an application under Section 311 Cr.P.C. is allowed and that should in no way deter the Court from deciding the merits of the petition under Section 311 Cr.P.C. 7. In this case, the prosecution has not chosen to introduce any new witnesses and already 161 statement of L.Ws.4 to 19 and L.W.22 have been recorded, based on which, cognizance was taken and charges have also been framed by the Trial Court. For some reasons, the Trial Court has closed the prosecution side without giving opportunity to the prosecution to examine those witnesses. In fact, it is the duty of the Court to take coercive steps to secure the presence of the witnesses in a criminal case and not to prey into the hands of either recalcitrant police or clever accused. 8. Therefore, the order impugned in this petition, in the considered opinion of this Court, does not suffer from any infirmity. At the same time, in the guise of examining the said witnesses, the trial of the case cannot be prolonged and damocles sword should not hang on the head of the accused indefinitely. It is seen that the case is of the year 2002 and the petition under Section 311 Cr.P.C. was filed in the year 2012 and the impugned order was passed on 08.12.2015, by which time, this Court does not know how many of the witnesses have died. 9. It is seen that the case is of the year 2002 and the petition under Section 311 Cr.P.C. was filed in the year 2012 and the impugned order was passed on 08.12.2015, by which time, this Court does not know how many of the witnesses have died. 9. Under such circumstances, this Court directs the Trial Court to complete the examination of L.Ws.4 to 19 and L.W.22 within a period of three months from the date of receipt of a copy of this order and the accused shall also co-operate by cross examining the witnesses. The Hon'ble Supreme Court in the case of Vinod Kumar vs. State of Punjab reported in 2015 (1) Scale 542 , has stated that the cross examination of the witnesses should be immediately after the chief examination. This judgment has been circulated to all the Presiding Officers on the direction of the Supreme Court by the Registrar General of this Court. The Trial Judge is directed to bear in mind the mandates of the aforesaid judgment of the Supreme Court and complete chief examination and cross examination of the witnesses expeditiously within three months as directed above. With the above direction, this Criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is closed.