Reasoned order passed by trial court in dismissing petition for denovo trial.

ORDER: This revision has been filed by the petitioner, fourth accused namely, Mohan in S.C.No.1 of 1993 on the file of the Sessions Court, Thiruvannamalai against the order of dismissal passed by the Sessions Judge, Thiruvannamalai in Crl.M.P.No.4505 of 2003 in S.C.No.1 of 1993 on 15.3.2004, whereby the petitioner prayed for denova enquiry of the Magistrate as if, the examination of material witnesses without his counsel is illegal and unjust in the light of Secs.273 and 304, Crl.P.C.

2. However, the said Crl.M.P.No.4505 of 2003 has been strongly contested by the prosecution by saying that the said petition is not at all maintainable and the allegations stated in support of that petition are not at all correct and true and that the said petition itself is nothing but an attempt to delay the progress of the trial of the sessions case to the maximum possible and in a way to cause inconvenience to other connected accused, who are facing the trial under the same sessions case and particularly when the first accused is a Srilanka citzen and case is pending from the year 1993.

3. I have gone through the order of the Sessions Judge, Thiruvannamalai carefully and also heard the arguments of the petitioner’s counsel as well as the Government Advocate (Criminal Side) in detail. The following material factors have to be taken into account before analysing the maintainability of the petition in Crl.M.P.No.4505 of 2003 or otherwise and its genuineness. As per the charge sheet filed by the prosecution in this case, the petitioner along with other accused is said to have committed offence under Secs.302 (3 counts), 307 (4 counts), 419, 457, 394, 396 read with 392 and 353, I.P.C., apart from Secs.325(1)(a) and 27(2) and (3) of Arms Act. The sessions case is pending from 1993. The first accused is the Srilanka citizen. So far 46 witnesses have been examined for the prosecution.

4. The main and the substantial grounds alleged in this revision petition are to the effect that the order of dismissal in the petition in Crl.M.P.No.4505 of 2003 is unjustified and illegal in the light of Secs.273 and 304, Crl.P.C. and that the examination of witnesses without the counsel also is illegal and that the Sessions Court failed to provide legal assistance inasmuch as he is an indigent person and coolly by profession and no means for him to engage any counsel.

5. Originally, charge sheet was filed against 12 accused and the petitioner is the fourth accused in the sessions case. After committal to the Sessions Court, 12th accused namely, Murthy alias Periyasamy died and accused Nos.9 to 11 were absconding and so case against them was split up and then again accused Nos.2,3 and 8 absconded and a case against them also was split up and then 7th accused died and therefore, lastly the S.C.No.1 of 1993 now is pending against accused Nos.1,4,5 and 6 alone. Totally 46 witnesses have been examined for prosecution so far and whileso, the petitioner/fourth accused move this Court for transfer of the said S.C.No.1 of 1993 to some other Court and stay was granted by this Court and lastly the transfer petition was dismissed on 22.7.2002. Thereafter the case was pending for trial before Additional District Judge, Thiruvannamalai. Whileso, Crl.M.P.No.4505 of 2003 was filed for denova trial on 9.9.2003 as if, he is an indigent person and he has no means to engage a counsel and examination of the witnesses in the absence of his counsel and the witnesses have not been cross-examined by him and thereby denova trial is required. However, the trial Court namely, Sessions Court, Thriuvannamalai has pointed out that the petitioner on previous occasion has filed a petition under Sec.311, Crl.P.C. for recalling P.Ws.1 to 3 and 23 alone for cross-examination by saying that those witnesses alone are implicating the petitioner in the offence and the said application numbered as Crl.M.P.No.32 of 2003 and it has been allowed on 10.3.2003 itself and that thereafter there was no progress in the

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