Murali v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2009CORAM:THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMARCRL.O.P.No.10719 of 2009andM.P.Nos.1 and 2 of 20091.Murali2.Visalam3.P.Bhanumathi ..Petitioners/Accused 1 to 3Vs.State Represented by itsInspector of PoliceW1 Police StationThousandlightsChennai(Cr.No.4 of 2007) ..Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482Cr.P.C. to set aside the order dated 25.11.2008 passed in Crl.M.P.No.1928 of 2008 in C.C.No.5640 of 2007 on the file of the Chief Metropolitan Magistrate, Egmore, Chennai-08 and consequentlydirect the learned Chief Metropolitan Magistrate to recall P.W.1 forre-examination of the above case. For Petitioner : Mr.R.Karthikeyan For Respondents : Mr.I.Paul Nobel Devakumar Govt. Advocate (Crl. Side) ORDERQuestioning the legality of the order passed by the learnedChief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No.1928 of2008 in C.C.No.5640 of 2007 dated 25.11.2008, the present petitionhas been filed under Section 482 Cr.P.C with a prayer that the saidorder should be set aside and the learned Chief MetropolitanMagistrate, Egmore, Chennai should be directed to recall P.W.1 forfurther cross-examination with reference to a number of documentswhich the petitioners (accused) want to rely on.

The submissions made by Mr.R.Karthikeyan, learned counsel forthe petitioner and by Mr.I.Paul Nobel Devakumar, learned Government https://hcservices.ecourts.gov.in/hcservices/ Advocate (Crl. Side) representing the respondent were heard. Thematerials available on record were also perused.

A case was registered on the file of W.1 All Women PoliceStation, Thousand Lights, Chennai as Cr.No.4/2007 of the said policestation against the petitioners herein based on the complaint made bythe wife of the first petitioner herein. After investigation, afinal report was submitted and a criminal case was instituted onpolice report against the petitioners herein in C.C.No.5640/2007 onthe file of the Chief Metropolitan Magistrate, Egmore, Chennai foralleged offences punishable under Sections 406 and 498-A IPC andoffences punishable under Sections 4 and 6 of Dowry Prohibition Act. The said case is in the part heard stage.

Already four witnesses have been examined on the side of theprosecution as P.Ws.1 to 4. Thereafter, the petitioners moved apetition under Section 311 of Cr.P.C before the trial court forrecalling P.Ws.1 to 4 stating that they were to be cross-examinedwith reference to some of the documents which were vital for theirdefence in the said case. However, the petitioners did not producethe documents along with the petitions. Not even a list of documentswas filed along with the petition. The learned Chief MetropolitanMagistrate, after hearing, dismissed the said petition by order dated25.11.2008 observing that Section 311 Cr.P.C was not intended to fillup any lacuna.

The learned counsel for the petitioners contends that thelearned Chief Metropolitan Magistrate did not properly consider thescope of the power of the court under Section 311 Cr.P.C and that thecourt below has erroneously dismissed the petition with anobservation that such petition could not be filed for filling uplacuna. It is the further contention of the learned counsel for thepetitioners that the petitioners facing criminal charges, should begiven reasonable opportunity to put-forth their defence and thatcross-examining the prosecution witnesses with reference to thedocuments which came into the hands of the accused subsequent to theexamination of the prosecution witnesses would help the accusedpersons very much in establishing their innocence; that theprosecution witnesses could not be cross-examined with reference tosuch documents as they were not readily available with thepetitioners at the time of examination of P.Ws.1 to 4 before thetrial court and that when they were able to get those documents, theyapproached the trial court under Section 311 in vain to get an orderrecalling P.Ws.1 to 4 so that they could be cross-examined withreference to the documents sought to be relied on by the petitionersto prove their innocence.

The learned counsel for the petitioners also pointed out thefact that the petitioners are not seeking an order recalling theirwitnesses so that it may be assumed that the petitioners are trying https://hcservices.ecourts.gov.in/hcservices/ to fill up the lacunae caused in the evidence adduced before thetrial court. It is also the contention of the learned counsel forthe petitioner that there is no contention on behalf of therespondent that the witnesses sought to be recalled for furthercross-examination have turned hostile and are supposed to support thedefence case of the petitioners so that it can be said that thepresent attempt to recall them shall be nothing but an attempt tofill up the lacunae in the defence case.

After considering the submissions made by the learnedGovernment Advocate (Crl. Side) in this regard in reply to the abovesaid contentions raised by the learned counsel for the petitioner andafter perusing the records, this court is of the considered view thatthe opinion expressed by the court below that the present move by thepetitioners is an attempt to fill up the lacunae has been madewithout any basis. The courts should be liberal in granting suchprayers, when the accused facing grave charges come forward with aplea that some of the documents which came to their possession lateron are very vital for the defence and that the same will clinchinglyprove their innocence or disprove the case of the prosecution. Denying such an opportunity will result in denial of reasonableopportunity to the accused persons to disprove the case of theprosecution or prove their innocence. The same may result inmiscarriage of justice. The respondent has not raised any objectionon the ground that the present move by the petitioners is with a viewto drag on the proceedings as long as possible.

Yet another fact to be taken into account is the submissionsmade by the learned counsel for the petitioners during the course ofthe arguments advanced in this criminal OP to the effect that thoughthe petitioners had prayed for an order recalling P.Ws.1 to 4, thepetitioners are not very particular in recalling P.Ws.2 to 4 and thatit will be sufficient to recall P.W.1 alone. The petitioners havealso submitted a memo listing out the documents relating to whichP.W.1 has to be cross-examined after recalling him. This court, aftergoing through the list, is also of the opinion that cross-examiningP.W.1 relating to those documents will go a long way in establishingthe defence case of the petitioners. This court is of the furtherview that denying such an opportunity, shall, even result inprejudice and injustice to the petitioners.

For all the reasons stated above, this court comes to theconclusion that in order to do complete justice and preventmiscarriage of justice, the petitioners should be granted the reliefsought for in this petition. The petitioners shall submit a copy ofmemo produced in this petition before cross-examining P.W.1 to the Public Prosecutor concerned in the trial court.