RADU Vs. STATE

JUDGEMENT

(1.) This Original Petition has been filed seeking to set aside the order passed by the learned Chief Judicial Magistrate, Dharmapuri in Cr. M.P. No. 56 of 2019 in Spl.C.C. No. 4 of 2010 dtd. 28/3/2019, dismissing the petition under Sec. 311 of Cr.P.C to recall PW.7.

(2.) The petitioners are arrayed as A-1 and A-2 in this case and facing trial for the offences under Ss. 7 and 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 in Spl. C.C. No. 4 of 2010. PW.7 was examined before the Trial Court on 10/1/2019 and since certain documents were not available, a petition under Sec. 242 (3) Cr.P.C., had been filed in Crl. M.P. No. 25 of 2019 to defer cross examination of PW.7 and the trial Court had dismissed the petition on the same day. Thereafter, immediately on the next hearing date i.e., on 22/1/2019, the petition under Sec. 311 Cr.P.C had been filed to recall the witness, whereas, the Trial Court had dismissed the petition in consonance with the mandate of decision of Hon'ble Apex Court reported in AIR 2015 SC 1206 (Vinothkumar v. State of Punjab).

(3.) The learned counsel for the petitioners would submit that there are totally 18 witnesses in this case and though the case is of the year 2010, PW.1 in this case was examined on 2/3/2016 and the other witnesses were examined belatedly. He would further submit that the petitioners have cross examined all the other witnesses and since the petitioners were handicapped, due to non availability of certain documents, the petitioners were unable to cross examine PW.7 on 10/1/2019 and thereby, a petition had been filed to defer cross examination. However, the trial Court had dismissed the petition and thereby, the petitioners immediately on the next hearing date on 22/1/2019 had filed a petition to recall the witnesses. He would further submit that it is not a case where the evidence has been closed. He would further submit that the Trial is going on and that there are about eight witnesses yet to be examined and that by recalling the witness PW.7, no prejudice will be caused to the respondent. He would further submit that the petitioners at no point of time was responsible for delay in the progress of trial and that the petitioners had taken every steps to cross examine all the other witnesses on their same day of the examination in chief. He would further submit that PW.7 is an official witness who is also available in the local area at Dharmapuri District.