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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
K. MURALI SHANKAR, J.
S. Arumugam - Appellant
Versus
State through The Inspector of Police, Vigilance & Anti Corruption, Sivagangai - Respondent
CRL.O.P.(MD).No. 15280 of 2022 & CRL.M.P(MD)No. 10021 of 2022
Decided On : 09-09-2022
Section 482 - Criminal Original Petition - Prevention of Corruption Act - Sections 7 and 13(1) r/w 13(1)(d) - 311 Cr.P.C - 154(2) of the Indian Evidence Act
Fact of the Case:
The petitioner, the sole accused in a case under the Prevention of Corruption Act, sought permission to re-call witnesses for cross-examination. The trial court dismissed the petition, leading to the present petition under Section 482 of Cr.P.C.
Finding of the Court:
The court found that the delay in filing the re-call petition was not adequately explained, but considering that the witnesses sought to be re-called were not cross-examined, the petitioner was given one more opportunity to cross-examine the witnesses, with the condition of paying costs and forfeiting the right to cross-examine if the opportunity is missed.
Issues: The main issue was the delay in filing the re-call petition and the necessity of allowing the re-call of witnesses for cross-examination.
Ratio Decidendi: The court's decision was influenced by the provisions of Section 311 of Cr.P.C, which allows the summoning and re-examination of witnesses if their evidence is essential to the just decision of the case. The court also considered the provisions of Section 154(2) of the Indian Evidence Act regarding questioning of witnesses by the party calling them.
Final Decision: The Criminal Original Petition was allowed, the impugned order was set aside, and the petition to re-call the witnesses was allowed on payment of costs and with the condition of cross-examining the witnesses when produced before the court.
JUDGMENT
(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C, to call for the records relating to the impugned order in Crl.M.P.No.397 of 2022 in Spl.C.C.No.70 of 2014, dated 10.08.2022 on the file of the learned Special Court for Trial of Cases under Prevention of Corruption Act, Sivagangai and set aside the same.)
The Criminal Original Petition is filed, invoking Section 482 of Cr.PC., seeking orders to call for the records relating to the impugned order in Crl.M.P.No.397 of 2022 in Spl.C.C.No.70 of 2014, dated 10.08.2022 on the file of the learned Special Court for Trial of Cases under Prevention of Corruption Act, Sivagangai, dismissing the petition filed under Section 311 of Cr.P.C and set aside the same.
2. The petitioner is the sole accused in Spl.C.C.No.70 of 2014 on the file of the learned Special Court for Trial of Cases under Prevention of Corruption Act, Sivagangai.
3. The petitioner is charged for the offence under Sections 7 and 13(1) r/w 13(1)(d) of Prevention of Corruption Act.
4. It is not in dispute that the trial has already been commenced and 15 witnesses have already been examined and that when the case stand posted for further evidence, the above petition in Crl.M.P.No.397 of 2022, came to be filed under Section 311 Cr.P.C, seeking permission to re-call P.W.8, P.W.9, P.W.11, P.W.12 and P.W.13 for cross examination.
5. The petitioner's case is that the witnesses P.W.8, P.W.9, P.W.11 to P.W.13 are occurrence witnesses; that due to non perusal of case records, the said witnesses were not cross examined, that the said failure to cross examine the said witnesses, is neither willful nor wanton; that the accused will be put in great prejudice, if the said witnesses are not cross examined and that therefore, the petitioner was constrained to file the re-call petition.
6. The respondent has raised serious objections for allowing the petition. The learned Special Judge, after enquiry, has passed the impugned order, dated 10.08.2022, dismissing the said petition. Aggrieved by the said dismissal order, the accused has now come forward with the present petition, invoking Section 482 Cr.P.C for setting aside the impugned order.
7. It is not in dispute that the witnesses P.W.8 and P.W.9 were examined in chief on 26.10.2018; that P.W.11 was examined in chief on 01.02.2019; that P.W.12 was examined in chief on 08.04.2019 and that P.W.13 was examined in chief on 10.06.2019.
8. It is pertinent to note that the petition for re-calling the said witnesses for the purpose of cross examination came to be filed on 15.07.2022. The learned Special Judge, by observing that the reason given by the petitioner that due to non perusal of case records, the said witnesses could not be cross examined is neither convincing nor acceptable; that the re-call petition was filed almost four years from the date of examination of P.W.8 and three years after examination of P.W.13 and that the petitioner has not given any reason or explanation for such long delay, dismissed the petition.
9. It is pertinent to note that the latter part of Section 311 Cr.P.C, states that the Court shall summon and examine or re-call and re-examine any such person, if his appearance to the Court to be essential to the just decision of the case.
10. The learned Special Judge has rightly quoted the judgement of the Hon'ble Supreme Court in Vinod Kumar Vs. State of Punjab reported in 2015(1) MLJ (Crl) 288; and that the learned Special Judge by observing that the Hon'ble Supreme Court has taken such a view even for the delay of one year and 8 months and that since the case on hand is still worse and as there was a delay of 3 to 4 years, he was not inclined to allow the petition.
11. The learned counsel for the petitioner has relied on the recent judgment of the Hon'ble Supreme Court in Varsha Garg Vs. The State of Madhya Pradesh and others reported in 2022 LiveLaw (SC) 662.
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