J. ELIYESAR Vs. STATE

JUDGEMENT

(1.) This Criminal Original Petition has been filed by the accused to set aside the order passed by the Judicial Magistrate No.II at Sankari, Salem District in Crl.M.P.No.3439 of 2019 in C.C.No.128 of 2015 dated 24.01.2020.

(2.) The learned counsel for the petitioner has submitted that the petitioner is facing trial for the alleged offences under Sections 279 and 304(A) IPC. He further submitted that on 09.03.2017 PWs 1 and 2 were examined in chief and on that date, the petitioner's previous counsel did not cross examine the said witnesses. He further submitted that on 09.03.2017 itself PW3 was examined and on 20.06.2017 PW5 was examined and though the aforesaid two witnesses were cross examined on the same day, some of the vital questions were omitted to be asked during cross examination and hence, the petitioner has filed a petition under Section 311 of Cr.P.C., in Crl.M.P.No.3439 of 2019 on 17.12.2019. He further submitted that the aforesaid witnesses are material witnesses but without considering the same, the learned Judicial Magistrate No.II, Sankari has dismissed the said petition without giving an opportunity to the petitioner to cross examine the said witnesses and therefore, he prayed to set aside the order passed by the trial Court in Crl.M.P.No.3439 of 2019 in C.C.No.128 of 2019 dated 24.01.2020 and permit the petitioner to cross examine the aforesaid witnesses.

(3.) Per contra, the learned Additional Public Prosecutor has submitted that the petitioner has not stated any valid reason for not cross examining PWs 1 and 2 when they were examined before the trial Court. He further submitted that PWs 3 and 5 were elaborately cross examined on behalf of the petitioner. He further submitted that eventhough the aforesaid witnesses were examined in the year 2017 after a lapse of two years, the petitioner has filed a petition under Section 311 of Cr.P.C., to recall the aforesaid witnesses and taking into consideration of the aforesaid facts, the trial Court has rightly dismissed the petition and in the said order, this Court need not interfere.