(Prayer in Crl.O.P.No.21519 of 2017: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to set aside the order passed by the leaned V Metropolitan Magistrate, Egmore at Allikulam, Chennai, dated 30.08.2017 made in C.C.No.18953 of 2005.

in Crl.O.P.No.21520 of 2017: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to set aside the order passed by the learned V Metropolitan Magistrate, Egmore at Allikulam, Chennai, dated 26.07.2017 made in Crl.M.P.No.4030 of 2016 in C.C.No.18953 of 2005.)

1. These Criminal Original Petitions have been filed challenging the order passed by the Court below dismissing the petition filed by the petitioner to eschew the evidence of PW-1 and the order passed by the Court below closing the evidence of PW-2 to PW-4.

2. The petitioner is facing trial before the Court below for the alleged offence under Section 454, 457 & 380 of IPC. The prosecution had examined four witnesses including the de facto complainant, who was examined as PW-1. None of these witnesses were cross examined and their evidence was closed. The petitioner filed an application under Section 311 of Cr.P.C., to re-call PW-1 to PW-3 for cross examination and the said application was allowed by the Court below by an order dated 27.03.2013.

3. The petitioner was taking steps to issue summons on PW-1 and the respondent Police was not able to serve it on PW-1, inspite of their best efforts and they were not able to produce PW-1 in the Court and his “whereabouts are not known”. Therefore, the petitioner filed Crl.M.P.No.4030 of 2016, before the Court below seeking for the relief of eschewing the evidence of PW-1.

4. Insofar as PW-2 to PW-4 are concerned, the Court below was giving repeated opportunities to the petitioner to take steps to serve the summons on them to re-call them for the cross examination. Ultimately, the Court below closed the evidence of PW-2 to PW-4 on the ground that the petitioner did not take effective steps to pay the process fee to issue summons to PW-2 to PW-4.

5. Both the above said orders are the subject matter of the challenge in the present Criminal Original Petitions.

6. This Court will first deal with Crl.O.P.No.21520 of 2017, which pertains to the petition filed by the petitioner seeking for eschewing the evidence of PW-1.

7. The learned counsel for the petitioner submitted that PW-1 is the de facto complainant and he has to be necessarily cross examined. Inspite of the best efforts of the prosecution, PW-1 is not traceable, and therefore the petitioner has now been denied the opportunity to cross examine PW-1. Hence, the evidence given by PW-1 in the chief examination cannot be put against the petitioner, and it has to be eschewed in toto. If the same is used against the petitioner, the petitioner will be put to grave prejudice. In order to substantiate his arguments, the learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in State of Orrissa .Vs. Prasanna Kumar Mohanty reported in (2009) 7 SCC 412 and P.Sanjeeva Rao .Vs. State of Andhra Pradesh reported in (2012) 7 SCC 56.

8. The learned Additional Public Prosecutor appearing on behalf of the respondent Police submitted that the petitioner had an opportunity to cross examine PW-1 when he was examined in chief and the petitioner did not utilise the said opportunity. Later, the petitioner has filed a petition to re-call PW-1 for cross examination and PW-1 is not able to be traced by the respondent Police. This by itself does not make the evidence of PW-1 totally irrelevant to the case and there is no provision under the Code of the Criminal Procedure or under the Evidence Act, to eschew the evidence which has been validly recorded by a Competent Court. The learned counsel further submitted that the Court below has given sufficient reasons for not entertaining the petition filed by the petitioner and there is no ground to interfere with the same and