V MALAICHAMY Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) The accused is facing a prosecution in Special Case No.70 of 2011 before the Special Court for the Trial of Prevention of Corruption Act Cases, Madurai. It is the case of the prosecution that on 22.01.2010, the accused had demanded and accepted bribe of Rs.1,500/- from P.W.2. It is the further case of the prosecution that the Trap Laying Officer had sent one Mr.Ravi Kumar (P.W.3) as shadow witness to accompany P.W.2. P.W.2 was examined in chief on 18.01.2013 and in the course of the chief examination, he has stated that the Trap Laying Officer had called one Munusamy and one Ravi Kumar as independent witnesses and that Munusamy accompanied him at the time of demand and acceptance by the accused. After the chief-examination, the cross- examination was deferred and P.W.2 was cross-examined by the accused two years later, namely 28.10.2015. He was once again recalled and was further cross-examined on 15.04.2016. Ravi Kumar was examined as P.W.3 and he gave evidence corroborating the evidence of P.W.2. After the Investigating Officer was examined, the prosecution closed their evidence and the examination of Munusamy was dispensed with. The accused was questioned under Section 313 of the Code of Criminal Procedure and he has also filed his written explanation. Thereafter, the Public Prosecutor observed that P.W.2 had wrongfully given the name as 'Munusamy' instead of 'Ravi Kumar'. Hence, the Public Prosecutor filed an application in Crl.M.P.No.80 of 2018 in Special Case No.70 of 2011 to recall P.W.2 and Munusamy (L.W.4) to clarify this aspect. The Trial Court heard the objections of the accused and by the impugned order dated 06.03.2018, allowed the petition, challenging which, the accused is before this Court.

(2.) Heard Mr.S.J.Chakkaravarthy, learned counsel for the accused and Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor appearing for the respondent.

(3.) Mr.S.J.Chakkaravarthy, learned counsel for the accused submitted that the prosecution is attempting to fill up the lacunae by recalling P.W.2, especially, after the accused had given his explanation under Section 313 of the Code of Criminal Procedure. Mr.S.J.Chakkaravarthy, learned counsel for the accused placed strong reliance on the judgment of the Rajasthan High Court in Balwant Singh v. State of Rajasthan, (1986) CriLJ 1374, wherein it has been held that the prosecution cannot be permitted to recall a witness for the purposes of filling up the lacunae.