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High Court of Judicature at Madras
S. NAGAMUTHU, J.
R. Dineshkumar @ Deena
Versus
State Rep. By the Inspector of Police, CBCID, Metro Wing, Alandur, Chennai & Others
Crl. R.C. No. 425 of 2014
Decided on: 13-11-2014
Evidence Act - Section 132 - Indian Penal Code - Sections 147, 148, 302 & 120(B) – Criminal Procedure Code - Section 319 - Constitution of India, 1950 - Article 20(3) – Offence of murder – Imprisonment - Said criminal revision petition was admitted and same came up for hearing before this court on few dates - In mean while a petition was filed by First Accused – In said sessions case - Challenging order passed by trial court wherein trial court had allowed said petition filed by prosecution thereby permitting prosecution to examine witnesses in addition who were not earlier cited as witnesses in final report - Since both matters were dealt with by two different Hobble Judges on note put up by Registry then Hobble Acting Chief Justice by order had directed to tag and ordered same to be listed before some other Hobble Judge - Matter was accordingly heard by Hobble Judge recued himself from these petitions and directed Registry to place papers before Hobble Chief Justice for listing same before some other Judge - While so Advocate who is counsel on record for petitioner in present Criminal Revision Petition gave a letter to Hobble Chief Justice requesting to list criminal revision petition before Hobble court Division Bench itself or before any other Division Bench – Held, Applying above tests to facts of present case if court look into evidence of 2nd respondent/P.W.64 it is crystal clear that he is entitled for protection under proviso to Section 132 of Evidence Act because there was legal compulsion to answer question as it was relevant to matter in issue in the case - Compulsion has emanated from Section 132 of Evidence Act - In view of all above discussions court hold that evidence of 2nd respondent as a prosecution witness before trial court and incriminating answers given by him amount to compelled testimony falling within sweep of Section 132 of Evidence Act and thus he is protected by proviso to Section 132 of Evidence Act - In such view of matter solely on basis of his evidence as P.W.64 before trial court he cannot be prosecuted either by summoning him as an additional accused in present case or in a separate trial - At same time for offence of conspiracy allegedly committed by A2 and A3 and 2nd respondent herein there can be a prosecution for offence under Section 120(b) r/w 302 of IPC - But such prosecution against 2nd respondent cannot be based on his statement made under Section 164 of Criminal Procedure Code in this case and his evidence as P.W.64 before trial court in present sessions case - If there are other materials collected during investigation by which said conspiracy could be proved against him there can be no legal impediment to prosecute 2nd respondent herein along with A2 and A3 for said offence of conspiracy by filing a separate police report - After such prosecution will be at liberty to approach court to tender pardon to 2nd respondent under Section 306 of Criminal Procedure Code and then to examine him as a prosecution witness in order to prove said conspiracy if need be - During course of arguments Public Prosecutor submitted that there may be a direction issued to trial court to have a day-to-day trial of case - It is informed to this court that it has become almost practice of Principal Sessions Judge and the other Sessions Judges not to have day-to-day trial of Sessions Cases though Section 309 of Criminal Procedure Code mandates that trial shall be conducted on day-to-day basis - Having regard to said statement made by Public Prosecutor deem it appropriate to issue a direction to trial court to hold trial on day-to-day basis and to dispose of case at earliest - Criminal revision petition is dismissed
1. The petitioner is the Fifth Accused in S.C.No.73 of 2009 on the file of the learned Principal Sessions Judge, Chennai. Altogether, including the petitioner, there are seven accused in the said case. The trial court has framed charges under Sections 147, 148, 302 & 120(B) of IPC. As many as 71 witnesses were cited in the final report. During trial, already, 65 witnesses have been examined on the side of the prosecution and all such witnesses have been cross examined by the counsel appearing for the respective accused, except P.W.64. P.W.64 is one Shri. L. Venkatesh, the 2nd respondent in this revision petition. After the chief examination of P.W.64 [the 2nd respondent herein] was over, the petitioner herein filed a petition in Crl.M.P.No.4188 of 2014 under Section 319 of Cr.P.C. seeking to summon the 2nd respondent/P.W.64 as an additional accused so as to be tried together with the rest of the accused, who are already facing trial. That petition was dismissed by the trial court by order dated 10.03.2014. Challenging the same, the petitioner/A5 is before this court with this criminal revision petition.
2. The said criminal revision petition was admitted on 17.04.2014 and the same came up for hearing before this court on few dates. In the mean while, a petition in Crl.O.P.No.8102 of 2014 was filed by the First Accused – Smt. N. Banu in the said sessions case - challenging the order passed by the trial court in Crl.M.P.No.3937 of 2014 wherein the trial court had allowed the said petition filed by the prosecution thereby permitting the prosecution to examine 11 witnesses in addition, who were not earlier cited as witnesses in the final report. Since both the matters were dealt with by two different Hon'ble Judges, on the note put up by the Registry, the then Hon'ble Acting Chief Justice, by order dated 14.07.2014 had directed to tag Crl.R.C.No.425 of 2014 with Crl.O.P.No.8102 of 2014 and ordered the same to be listed before some other Hon'ble Judge. The matter was accordingly heard by the Hon'ble Judge and on 05.09.2014, the Hon'ble Judge recused himself from these petitions and directed the Registry to place the papers before the Hon'ble Chief Justice for listing the same before some other Judge. While so, Mr. S. Ruban, Advocate, who is the counsel on record for the petitioner in the present Criminal Revision Petition gave a letter to the Hon'ble Chief Justice requesting to list the criminal revision petition before the Hon'ble I Division Bench itself or before any other Division Bench. In the said letter, inter alia, he has stated as follows:-
“.. .. .. On 16.07.2014 both the Revision Petition and the Original Petition came up for hearing before His Lordship Mr. Justice C.T. Selvam. Then after the case was listed on 04.08.2014, 12.08.2014, 13.08.2014, 21.08.2014, 25.08.2014 and arguments were made by all these counsels in-depth on the above said dates by citing several judgments and to the shock and surprise when the case came up for hearing on 05.09.2014. His Lordship was pleased to post the case before some other judge. Which fact cannot be questioned by us.
The accused apprehend that the Defacto-complainant being an influential person is bent on to get the Revision Petition Dismissed is causing the delay of hearing the Revision Petition.
We have a reasonable apprehension that anonymous petitions are sent to the Judges who are hearing the matter.”
3. The Registry accordingly placed the papers before the then Hon'ble Acting Chief Justice including the above letter of the learned Advocate Mr. S. Ruban. The then Hon'ble Acting Chief Justice on 07.10.2014 passed an order directing both the matters to be listed before me as “specially ordered cases”. Thereafter, the same were listed before me for hearing on 30.10.2014 and on that day, at the request of the learned counsel for the petitioner, they were adjourned.
4. In the mean while, Mrs. Sudha Vijayakumar, the wife of the victim filed a miscellaneous petition in M.P.No.2 of 20
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