BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.02.2018
CORAM
THE HON’BLE MR.JUSTICE P.RAJAMANICKAM
CRL.O.P.(MD)No.1705 of 2018
1.S.Manivannan
2.T.Sudalai Muthu Pillai
3.T.C.Thanammal … Petitioners
-vs-
The Inspector of Police,
All Women Police Station,
Nagercoil,
Kanyakumari District. … Respondent
Prayer: Criminal Original petition is filed under Section 482 of Criminal
Procedure Code, to call for the records relating to the impugned order dated
11.12.2017 passed by the learned Judicial Magistrate No.II, Nagercoil and set
aside the same and consequently allow the application filed by the
petitioners herein in Cr.M.P.No.5334 of 2017 in C.C.No.151 of 2013, on the
file of the learned Judicial Magistrate No.II, Nagercoil, under Section 311
of Cr.P.C., for seeking permission to recall P.W.1 for cross-examination.
!For Petitioners : Mr.E.V.N.Siva
^For Respondent : Mr.Prabu Ramachandran
Government Advocate (Crl.Side)
:ORDER
This Criminal Original Petition has been filed by the petitioners, to
set aside the order passed by the learned Judicial Magistrate No.II,
Nagercoil in Cr.M.P.No.5334 of 2017 in C.C.No.151 of 2013.
2.The learned counsel appearing for the petitioners has submitted that
the petitioners are the accused Nos.1 to 3 and they are facing trial for the
charges under Sections 498A, 406 and Section 4 of the Tamilnadu Prohibition
of Harassment of Women Act. He further submitted that the petitioners have
been regularly appeared before the Trial Court and the charge has been framed
on 19.09.2013 and thereafter, till 08.06.2017, no progress has been made and
only on 08.06.2017, the P.W.1 was examined and on that date the petitioners’
counsel, was out of station and hence, the P.W.1 was not cross examined. He
further submitted that on 25.09.2017, the petitioners have filed a petition
under Section 311 Cr.P.C., in Cr.M.P.No.5334 of 2017 to recall P.W.1 for
cross examination and the same has been dismissed by the learned Judicial
Magistrate, without considering the petitioners’ request. He further
submitted that even after the dismissal of the said petition, no progress has
been made in C.C.No.151 of 2013, till today and hence he requests to give one
more opportunity to the petitioners to cross examine the P.W.1.
3.The learned Government Advocate (Crl.Side) has submitted that the
learned Judicial Magistrate has passed the order by taking into
consideration, the reason given by the petitioners that their Advocate was
out of station is not a valid ground. He further submitted that when an
opportunity was given to the petitioners, they have not utilized the
opportunity and cross examined the P.W.1 and they have filed the petition to
recall the P.W.1, with a view to drag on the proceedings and hence he
strongly opposed, this petition.
4.A perusal of the Diary Extract in C.C.No.151 of 2013 shows that the
charge was framed on 19.09.2013 and thereafter no progress has been made till
08.06.2017 and only on 08.06.2017, the P.W.1 was examined in Chief and
thereafter it was adjourned to 13.07.2017, 17.08.2017 and 25.09.2017 and on
that date, the petitioners herein have filed a petition under Section 311
Cr.P.C., to recall the P.W.1 for cross examination and the same was taken on
file in Cr.M.P.No.5334 of 2017 and the same has been adjourned to 27.11.2017
and finally on 30.11.2017. The learned Judicial Magistrate has dismissed the
application stating that the reason given by the petitioners is not
acceptable. Taking into consideration the petitioners have been appearing
before the Trial Court from the year 2013 and no progress has been made till
08.06.2017, I am of the view that one more opportunity should be given to
the petitioners to cross examine the P.W.1. However, the petitioners should
compensate the P.W.1 for the inconvenience caused to her.
5.In the result, this Criminal Original Petition will be allowed on
deposit of cost of Rs.1,000/-before the Trial Court on or before 19.02.2018,
failing which, this petition shall stand dismissed. If the petitioners
complained with the aforesaid condition on or before 19.02.2018, the learned
Judicial Magistrate has to recall the P.W.1 and give an opportunity to the
petitioners to cross examine the P.W.1 and after such cross examination, the
learned Judicial Magistrate has to pay the aforesaid cost of Rs.1,000/- to
the P.W.1. The petitioners are directed to cross examine the P.W.1 on her
appearance before the Trial Court, without seeking any more adjournment.
6.With the aforesaid directions, this Criminal Original Petition is
disposed of.
To
The Inspector of Police,
All Women Police Station,
Nagercoil,
Kanyakumari District.
.
