T THANGAMANI Vs. STATE; KUMARA RAVIKUMAR; MUTHUSAMY; PERU NATARAJAN; THANGARAJ; ESU KANDASAMY; SARAVANAN; DHARMALINGAM; MOGANATHAM; SOMU @ SOMASUNDARAMOORTHI; KAVITHA @ MYTHILI SELVI; S R SIVASAMY; RAMAYAL; GOW GIRI @ GIRIKORI

JUDGEMENT

(1.) This Criminal Revision Case is directed against the order passed by the learned Judicial Magistrate No.II, Gobichettipalayam, in Crl.M.P.No.368 of 2016, dated 08.02.2016, dismissing the petition filed by the petitioner under Section 326(2) of Cr.P.C.

(2.) On a perusal of the records, it is clearly revealed that on the basis of the complaint given by the petitioner on 01.11.2003, the Inspector of Police, Sathyamangalam, has registered a case in Crime No.699 of 2013 for the offences under Sections 467, 468, 471 and 506(2) IPC and after completing the investigation, he has laid a charge sheet before the learned Judicial Magistrate, Sathyamangalam, and it was taken on file as C.C.No.128 of 2006 on 08.06.2006. On 22.07.2015, P.W.1 and P.W.2 were examined. Subsequently, transfer petition in C.M.P.No.1650 of 2015 was filed before the learned Chief Judicial Magistrate, Erode, to transfer the said case to some other Court and it was ordered by the learned Chief Judicial Magistrate, Erode, on 09.09.2015, to dispose of the case within six months from the date of receipt of a copy of that order and subsequently, the case was transferred to the file of Judicial Magistrate No.II, Gobichettipalayam and renumbered as C.C.No.92 of 2015. In the said case, the learned Judicial Magistrate No.II, Gobichettipalayam, ordered to conduct enquiry on 30.11.2015 and the petitioner has filed a petition in Crl.M.P.No.368 of 2016 on 05.02.2016 for recording the evidence of P.W.1 and P.W.2 afresh.

(3.) The learned counsel for the petitioner would mainly contend that under Section 326 Cr.P.C., the learned Magistrate has discretion to re-summon the witnesses and there is nothing illegal to order de nova trial, in view of the amendment of Section 350 of Cr.P.C. It is further contended that the occurrence took place in the year 2002 and the evidence was given in the year 2015, but, even without giving full and adequate opportunity to the witnesses to recollect the entire facts, their evidences were recorded at the instance of the defence counsel. The learned counsel for the petitioner also contended that in exceptional circumstances, the Court in order to prevent the miscarriage of justice, if considers necessary, may direct for de nova trial. Hence, the order of the learned Magistrate dismissing the petition filed by the petitioner for recording the evidence of P.W.1 and P.W.2 afresh, is erroneous and the said order is liable to be set aside.