Full Judgment
(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to set aside the order dated 04.02.2016 passed by the Additional Assistant Sessions Judge, Thanjavur in Crl.M.P.No.47 of 2016 in S.C.No.268 of 2013.)
1. This petition has been filed to set aside the order dated 04.02.2016 passed by the Additional Assistant Sessions Judge, Thanjavur in Crl.M.P.No.47 of 2016 in S.C.No.268 of 2013.
2. Heard the learned counsel for the petitioner and learned Government Advocate (Crl.Side) appearing for the respondent.
3. It is seen that this petitioner is facing prosecution in S.C.No.268 of 2013 for offences under Sections 294(b), 353, 506(ii) IPC and 3(1) of TNPPDL Act. The prosecution examined five witnesses of whom the petitioner/accused has not examined P.Ws.1, 4 and 5. While so, the petitioner filed a petition in Cr.M.P.No.47 of 2016 in S.C.No.268 of 2013 under Section 311 Cr.P.C. to recall the witnesses, which was dismissed by the learned Additional Assistant Sessions Judge, Thanjavur on 04.02.2016, challenging which, the petitioner is before this Court.
4. The Supreme Court in Vinod Kumar vs. State of Punjab reported in 2015 (1) Scale 542, has categorically stated that witnesses should be cross examined on the date they are examined in chief, because there are every possibilities of the accused tampering with the witnesses and making them turn hostile. Pursuant to the said judgment of the Supreme Court, the Registrar Judicial of Madras High Court has also issued a circular in R.O.C.No.7808-A/2015/F1/Regr (Judl), directing all the Trial Courts to strictly adhere to the law laid by the Supreme Court in the aforesaid case. Therefore, this Court does not find any infirmity in the order passed by the Court below.
5. However, learned counsel for the petitioner submitted that it would suffice, if the petitioner is permitted to cross examine P.W.1 alone.
6. Taking into consideration the plea of the learned counsel for the petitioner, this Court is of the view that it will be in the interest of justice, if the petitioner is permitted to cross examine P.W.1, but on payment of cost.
7. Accordingly, the Trial Court is directed to recall P.W.1 on the convenient date within two weeks from the date of receipt of a copy of this order and on the appearance of P.W.1, the petitioner shall pay a cost of Rs.1,000/- to P.W.1 before he gets into the witness box for cross examination. The petitioner shall cross examine P.W.1 on the same day and shall not adopt any dilatory tactics. The Trial Court shall bear in mind that even if P.W.1 turns hostile, reliance can be placed upon the evidence of P.W.1 given in chief examination, as done by the Supreme Court in Vinod Kumar vs. State of Punjab (supra) and in view of the amendment of Section 154 of the Evidence Act. The amendment to Section 154 of the Act was introduced only to prevent the pernicious practice of accused making witnesses turn hostile by taking time to cross examine the witnesses after they are examined in chief.
8. If P.W.1 is either dead or is unable to be summoned for sound reasons, the Trial Court is directed to proceed with the trial and the petitioner cannot insist that the Trial Court should recall P.W.1.
With the above direction, this Criminal Original Petition is ordered accordingly.