IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.02.2026 CORAM:

THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA Khargeswar Barkoti @ Shyam ...Petitioner Vs.

State rep. by the Inspector of Police, E3, Teynampet Police Station, Chennai.

Crime No.236 of 2024. ...Respondent Criminal Original Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita/Section 482 of Cr.P.C., to call for the records in Crl.M.P.No.4 of 2025 in S.C.No.60 of 2025 dated 07.01.2025 pending on the file of the Principal Sessions Court, Chennai and to set aside the order passed in Crl.M.P.No.4 of 2025 dated 07.01.2025.

For Petitioner : Mr.G.Prabhakaran For Respondent : Mr.S.Santhosh, GA (Crl. Side)

O R D E R

This criminal original petition has been filed seeking to set aside the order dated 07.01.2025 passed by the learned Principal Sessions Judge, Chennai in Crl.M.P.No.4 of 2025 in S.C.No.60 of 2025.

2. The brief facts of the case are as follows :-

The petitioner is an accused facing trial in S.C.No.60 of 2025 before the learned Principal Sessions Judge, Chennai, for the offence punishable under Section 103(1) of BNS, in Crime No.236 of 2024, on the file of the respondent-police. In the said case, the petitioner/accused filed a petition under Section 311 Cr.P.C., in Crl.M.P.No.4 of 2025 seeking to recall PW4 & PW9 for further cross-examination. The learned Judge, vide order dated 07.01.2025, dismissed the said petition. Challenging the same, the petitioner has come up with the present petition.

3. Learned counsel for the petitioner submitted that PW4 is the sole eye witness to the occurrence and PW9 is none other than the Doctor, who conducted postmortem and that the earlier counsel who appeared on behalf of the petitioner before the trial Court could not examine the said witnesses in full and the same is neither wilful nor wanton. Hence, the petitioner filed a petition under Section 311 Cr.P.C. in Crl.M.P.No.4 of 2025 seeking to recall PW4 & PW9 for further cross-examination, since the same is necessary to unfold the defence. However, the trial court, without considering the fact that the cross-examination of the above said witnesses is very much necessary to arrive at a just decision, dismissed the said petition, vide impugned order dated 07.01.2025, which is not sustainable.

He further submitted that if the petitioner is not given an opportunity to cross-examine the said witnesses, he would be put to a great predicament.

Accordingly, he prayed for appropriate orders of this Court.

4. Learned Government Advocate (Criminal Side) submitted that there are totally twenty one (21) witnesses in this case, out of which, nineteen witnesses have been examined so far and the Investigation Officer is not yet examined and that the case now stands posted to 18.02.2026 for examination of IO. He further submitted that PW4 & PW9 were examined as early as on 30.07.2025 and 18.08.2025 respectively and on the very same days, they were cross-examined by the petitioner/accused and therefore, the trial court, rightly finding that the witnesses cannot be recalled repeatedly for the purpose of examination at the convenience of the accused and that too, on the ground of change of counsel, had dismissed the petition under Section 311 Cr.P.C. in Crl.M.P.No.4 of 2025 filed by the petitioner/accused seeking to recall PW4 & PW9 for further cross-examination, which cannot be said to be erroneous.

5. On enquiry made by this Court as to whether the respondent police would be able to produce the witnesses on a particular date to be fixed by the trial Court, the learned Government Advocate (Criminal Side), on instructions from Mr.S.Kumaradevan, SSI, E3, Teynampet Police Station, Chennai, submitted in the affirmative.

6. Having heard the learned counsel appearing on either side and perused the materials available on record, though there had been certain lapses on the side of the petitioner, considering the fact that PW4 & PW9 who are the eye witness and the Doctor, who conducted postmo