(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for the records of the learned Sessions Judge-Mahila Court, Mahalir Neethimandram, Madurai in Cr.M.P.No.1376 of 2015 in S.C.No.109 of 2013 and set aside the order dated 27.01.2016.)
1. This petition has been filed to call for the records of the learned Sessions Judge-Mahila Court, Mahalir Neethimandram, Madurai in Cr.M.P.No.1376 of 2015 in S.C.No.109 of 2013 and set aside the order dated 27.01.2016.
2. It may not be necessary to elaborately discuss the facts of the case and it would suffice, if the minimum facts that are required for deciding this petition, is discussed.
3. The petitioner is an accused in S.C.No.109 of 2013 for the major offence punishable under Section 307 IPC. During the progress of the trial in S.C.No.109 of 2013, several witnesses turned hostile. Therefore, the defacto complainant filed a petition in Crl.O.P(MD) No.8606 of 2015 for appointment of a Special Public Prosecutor to conduct the proceedings. On 22.07.2015, this Court passed the following order:
6. Every trial is a march towards truth and justice. A fair trial has to be arose from the point of view of the defacto complainant as well as the accused. The ultimate duty of the Court is to find out the truth. A procedural law being a hand made of justice will have to be used for the said purpose. Considering the fact that some of the witnesses have turned hostile, this Court is of the view that the counsel appointed under Section 301 Cr.P.C. viz.G.Anbu Saravanan can be allowed to perform the role under Section 24(8) Cr.P.C. either by himself or by engaging another Senior Lawyer Mr.K.Sundaravel.
7. Accordingly, a direction is issued to the learned Additional District and Sessions Judge, Mahlir Neethi Mandram, Madurai to permit the counsel named G.Anbu Saravanan to perform the role under Section 24 (8) Cr.P.C. either by himself or by engaging another Senior Lawyer Mr.K.Sundaravel.
4. Pursuant to the order passed by this Court, Mr.Anbu Saravanan was appointed as Special Public Prosecutor and he took up the prosecution of the case before the Trial Court. He filed Cr.M.P.1376 of 2015 under Section 311 Cr.P.C., for recalling all the witnesses, namely, P.Ws.1 to 36 for further examination. Despite the strong objection raised by the accused, the Trial Court, by impugned order, allowed the petition, aggrieved by which, the accused is before this Court.
5. Heard the learned counsel for the petitioner, the learned Government Advocate (Crl.Side) appearing for the State and Mr.Anbu Saravanan, learned Special Public Prosecutor before the Trial Court.
6. It is the grievance of the petitioner that on the mere asking of the newly appointed Special Public Prosecutor, the Trial Court has allowed the application to recall all the witnesses, which will cause undue prejudice to the case of the accused.
7. Per contra, Mr.Anbu Saravanan, learned counsel / Special Public Prosecutor before the Trial Court, has contended that the witnesses were not properly examined by the erstwhile Public Prosecutor and therefore, he had to perforce file an application under Section 311 Cr.P.C. to recall them.
8. This Court gave its anxious consideration to the rival submissions and also perused the application filed by Mr.Anbu Saravanan, Special Public Prosecutor in Cr.M.P.No.1376 of 2015 and the impugned order dated 27.01.2016 passed by the Trial Court.
9. It is trite law that a petition under Section 311 Cr.P.C. can be filed at any time before the judgment is delivered. But, at the same time, the petitioner should explain how the evidence of the said witnesses is essential to the just decision of the case. It must be remembered that this Court in Crl.O.P.(MD) No.8606 of 2015 had not ordered de nova trial, but had only changed the Public Prosecutor. Of course, if the new Public Prosecutor feels that the erstwhile Public Prosecutor has not properly examined a particular witness, it is open to him to file an application under Section 311 Cr.P.C. for recalling him.
10. In this case, the petition filed by the Special Public Prosecutor under Section 311 Cr.P.C. does not even give the reasons for the wholesale recall of the prosecution witnesses. The Trial Court should not permit witch hunting of the accused by the prosecution. The accused also has a fundamental right guaranteed under Article 21 of the Constitution of India for fair trial. The order dated 22.07.2015 passed by the Trial Court proceeds on the footing as of the High Court has ordered de nova trial. Under Section 154 of the Evidence Act, as amended recently, even if a witness turns hostile to the prosecution case, his evidence cannot be totally ignored. Those portions, which are compatible with the prosecution case, can be relied upon by the Court to fasten criminal liability.
11. Very recently, the Supreme Court has given guidelines for entertaining an application filed under Section 311 Cr.P.C. in the case of Rajaram Prasad Yadav vs. State of Bihar, reported in (2013) 8 Scale 316 and A.G. vs. Shivakumar Yadav, 2015 (9) Scale 649, which the Trial Court is directed to bear in mind while dealing with any petition under Section 311 Cr.P.C., 1973, whether filed by the prosecution or the accused.
In the result, this Criminal Original Petition is allowed and the order dated 27.01.2016 in Cr.M.P.No.1376 of 2015 in S.C.No.109 of 2013 passed by learned Sessions Judge-Mahila Court, Mahalir Neethimandram, Madurai, is hereby set aside. Liberty is given to the Special Public Prosecutor to thoroughly analyze the depositions of the witnesses already examined and file a fresh application under Section 311 Cr.P.C., if warranted, by giving reasons thereof as to how his further examination is essential to the just decision of the case. Consequently, connected miscellaneous petition is closed.