SANTHANAM Vs. STATE

JUDGEMENT

(1.) THIS criminal miscellaneous petition has been filed for expunging the remarks made by the trial Magistrate (Additional First Class Magistrate No. 2, Madurai) in paragraph 27 of his iudgment dated 9-1-1968 in C. C- No. 87 of 1967. on his file, and also by lower appellatp court (Court of Session Madurai) in Paragraph 7 of his iudement made in C. A. Nos. 8, 9 and 30 of 1968, dated 30-8-1968. against the petitioner herein. The petitioner has extracted the portions sought to be expunged, in paragraphs 4 and 5 of his affidavit in support of this petition.

(2.) THE facts are simple. Four persons were charged by the Inspector of Police, BX North, Madurai, for offences under Section 120-B read with Section 379 IPC on the allegation that they had entered into a conspiracy at about 1 d. m. on 19-5-67 to commit theft of pig-iron from the open yard belonging to the Raw Material Depot. Industrial Estate Madurai, and Pursuant to the said conspiracy, on the samp night, at 2 a. m. (20-5-1967) they committed theft of pig-iron slabs belonging to the said Depot worth Rs. 3,000/- and transported the samp in the lorry MDR 3619 to Coimbatore. The Additional First Class Magistrate No. 2 Madurai. convicted A-l to A-4 under Sections 120-B and 379 IPC and sentenced each to undergo rigorous imprisonment for one year on each count and ordered the sentences on each of the ac' cused to run concurrently. On appeal, the Sessions Judge, Madurai, acauitted A-l of both the offences and also acauitted A-2 to A-4 of the offence under Section 120-B I. P. C, but convicted A-2 to A-4 for the offence under Section 379 I. P. C retaining the sentence of one year's riaorous imprisonment thereunder. During the course of the judgment, both the Additional First Class Magistrate, No- 2, Madurai. and also the Sessions Judge Madurai. have made the remarks which are now sought to be expunged.

(3.) THE petitioner is P. W. 13 in the criminal case and he was an A. C TO. in the Sales Tax Department. The prosecution has let in P. W. 13 to Drove that while he was in the checkpost at Singanallur at the particular point of time the theft was committed hv taking the lorrv with the foods stolen from the Depot in the Industrial Estate No doubt, from the judgments it is clear that P. W. 13 was not helpful to the prosecution. But the prosecution could have treated P. W. 13 as hostile and cross-examined him with the permission of the Court. The prosecution has not done so; and P- W- 13 was only treated as a witness for the prosecution.