A. PURUSHOTHAMAN Vs. THE STATE REP. BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION

JUDGEMENT

(1.) THE petition is by the second accused in Special Case No. 5 of 1999 pending on the file of the learned Special Judge, Villupuram and he challenges the order of the said Special Judge dismissing the petition filed by him seeking his discharge from the case. Before the learned Special Judge, a contention was raised by submitting that the approver in the case is no longer in a position to give evidence as he is suffering from Expressive Aphasia (Difficulty in Communication by words) and that therefore, he cannot give evidence. The learned Special Judge dismissed the said plea by holding that it is not possible for the Court to discharge the Petitioner on that ground. Hence, the challenge.

(2.) THE learned Counsel appearing for the Petitioner reiterates the said contention, which was raised before the trial Judge. He submits that Mohan, the approver, who was examined as a witness in another case, could not give evidence on account of the illness he is suffering from. He submits that under the above circumstances, the approver will not be in a position to give evidence and therefore, the prosecution is not likely to succeed in its endeavour to prove the charges. He, therefore, argues that the Petitioner is to be discharged. After hearing the learned Government Advocate and on a perusal of the materials, I feel that the said contention cannot be accepted. The submission that the approver is not in a position to give evidence as he is suffering from illness, can be verified only when the witness is put into the box. It is not possible for the Court to come to the conclusion that the approver is suffering from some illness and therefore, he will not be able to give evidence. It is to be remembered that he was taken as an approver after he was tendered pardon with conditions. It, therefore, becomes imperative for the prosecution to put the said person in the box and the Court must satisfy whether Mohan is really suffering from illness, which prevents him from giving evidence and only, in that event, the Petitioner can be discharged or otherwise, the Court can even order prosecution of Mohan if he does not stick on to his earlier version given to the learned Judge. The stage is too premature either for the Special Judge or for this Court to accept the plea that the approver is suffering from illness and therefore, the Petitioner is to be discharged. It is also to be remembered that even in the absence of the evidence of the approver, if there are other materials, the prosecution can still prosecute the Petitioner and successfully seek for a conviction from the trial Court. Therefore, it is for the trial Court to decide on the materials that may be let in before it to hold that the accused is guilty of his offence or not.