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DATED : 30.08.2023

CORAM :THE HON’BLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.No.19825 of 2023

Introduction:

The case of Kamalanathan and Sabhari vs. The State involves a petition filed under Section 482 of the Code of Criminal Procedure (CrPC) by the petitioners. The petitioners sought to set aside an order dated 20.03.2023 passed by the learned Judicial Magistrate No.I, Tiruppur, dismissing their application under Section 311 of CrPC. The application sought the recall of Prosecution Witness 9 (P.W.9) for cross-examination in a criminal case pending against the petitioners. The case has been ongoing for nearly two decades, and the petitioners face charges under Sections 467, 468, 471, 420, and 120B of the Indian Penal Code (IPC).

Factual Background:

 On 14.02.2023, P.W.9, who is the Investigation Officer in the case, was examined in chief during the trial. However, the petitioners did not cross-examine him at that time. Subsequently, on 22.02.2023, an application under Section 311 of CrPC was filed by the petitioners, seeking the recall of P.W.9 for cross-examination. This application was filed to rectify the omission of cross-examination.

However, the application was dismissed by an order dated 20.03.2023. Surprisingly, the petitioners filed another application in C.M.P.No.10387 of 2023 seeking the same relief without disclosing the existence of their earlier application in C.M.P.No.2099 of 2023. This subsequent application was also dismissed on 26.07.2023.

The petitioners approached the High Court challenging the order passed in C.M.P.No.2099 of 2023, dated 20.03.2023, which was their first application seeking the recall of P.W.9.

Arguments Presented:

• Petitioners’ Contentions: The counsel for the petitioners argued that the omission to cross-examine P.W.9 was not intentional and attributed the mistake to the fault of the previous counsel representing the petitioners. They contended that denying the right to cross-examine the Investigation Officer would prejudice the petitioners’ interests, as they have been facing the trial for almost two decades.
• State’s Response: The Additional Public Prosecutor representing the State countered that the petitioners had filed two similar applications seeking the same relief but did not reveal the existence of the earlier application in their subsequent filing. This behavior raised questions about the petitioners’ motives and whether the repeated applications were a deliberate strategy to delay proceedings.

Court’s Analysis and Decision:

The High Court, after considering the arguments and reviewing the orders and actions of the petitioners, delivered its judgment.

The Court observed that the petitioners’ conduct raised serious doubts about their intentions. It noted that the same counsel had filed both applications in C.M.P.No.2099 of 2023 and C.M.P.No.10387 of 2023, which were essentially seeking the recall of P.W.9. The Court also pointed out that the second application did not mention the prior application, indicating a lack of transparency.

Furthermore, the Court highlighted the protracted nature of the case, which had been pending for nearly 20 years, and noted that two out of four accused persons were already deceased. Denying the petitioners the opportunity to cross-examine P.W.9 would potentially impact their defense.

Considering these factors, the High Court decided to give the petitioners one last opportunity to cross-examine P.W.9. However, this opportunity came with conditions:

• The petitioners were directed to pay a cost of Rs.10,000 on the date of P.W.9’s appearance.
• P.W.9’s cross-examination should take place on the same day of his appearance.
• Following the cross-examination, the Court should complete the questioning under Section 313 of CrPC and hear arguments from both sides, reserving the case for judgment.
• If the petitioners fail to cross-examine P.W.9 on the specified date, they would lose the right to recall the witness, and the Court would proceed to pronounce the final judgment.
• The proceedings should be completed within four weeks from the date of receipt of the High Court’s order.

Conclusion:

 The judgment in the case of Kamalanathan and Sabhari vs. The State underscores the importance of transparency and fair conduct in legal proceedings. It also acknowledges the potential prejudice faced by the accused in a protracted trial. While the Court cautioned against the petitioners’ questionable behavior, it opted to grant them one last chance to cross-examine a crucial witness, provided they adhered to the specified conditions. This case analysis highlights the Court’s role in balancing the interests of justice and ensuring that parties are given a fair opportunity to present their case, even in complex and lengthy legal proceedings.

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Written by- Shreeya S Shekar

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