M. LALITHA Vs. STATE

JUDGEMENT

(1.) THE petitioner is the first accused in S.C. No. 41/2012, on the file of the Chief Judicial Magistrate, Krishnagiri and she filed an application in Crl.M.P. No. 1150/2014, for recalling PWs.2 and 16 and her application was dismissed by the learned Chief Judicial Magistrate, Krishnagiri, by order dated 06.01.2015 and aggrieved by the same, this petition is filed.

(2.) IT is submitted by the learned counsel for the petitioner that PW2 was cross -examined on 08.08.2012 and PW16 was cross -examined during April 2014 and PW2 -Perumal stated in his cross examination that within 10 days he handed over the third female child and the said answer was not recorded by the learned Magistrate and she immediately filed a memo before the Court and no action was taken. Further, on the side of the defence, DW1 -Doctor was examined on 16.06.2014 and he deposed that on 16.04.2010, no person in the name of Easwari, who is PW1, was admitted in the hospital for delivery and after going through the records maintained by the hospital, the said Doctor deposed that from 01.04.2010 to 30.04.2010, no person in the name of Easwari was admitted and no child was delivered by the said person in the said hospital. He therefore submitted that having regard to the evidence of the Doctor -DW1, the evidence of PW1 -Easwari becomes unreliable. PW2 -Perumal deposed that within 10 days the third female child was handed over and that was not recorded and for that purpose, to elicit further answer from PWs.2 and 16, the application under Section 311 CrPC was filed and without properly appreciating the same and without appreciating that examination of PWs.2 and 16 would be essential for just decision of the case and without rendering any finding to that effect, the trial Court dismissed the application stating that the case was posted for judgement and unnecessarily the proceedings were prolonged for no reason and therefore, the order is liable to be set aside. The learned counsel for the petitioner relied upon the following judgments, in support of his submissions:

(3.) THE learned counsel for the petitioner brought to my notice paragraphs 7, 8, 10, 16, 18 and 21 of the judgement in Mohanlal Shamji Soni and Union of India and Another [ : 1991 Supp (1) SCC 271] and submitted that in those paragraphs, the scope of Section 311 CrPC has been elaborately dealt with and the Court has got power to permit recalling of witnesses in such of the case and the Court has to consider whether the evidence is essential to the just decision of the case by getting the truth by all lawful means and therefore, the Court ought to have allowed the application.