THE HONOURABLE MR.JUSTICE G.RAJASURIA
Crl.R.C.No.697 of 2007
M.P.No.1 of 2007
2. Kamsalingam ... Petitioners
The Station House Officer,
Kadampulliyur Police Station,
Rep. By Assistant Public Prosecutor II
Panruti. ... Respondent
Prayer: Petition filed under Section 397 and 401 of Cr.P.C. against the order of allowing the Crl.M.P. Order dated 21.03.2007 made in Crl.M.P.No.3309 of 2006 in C.C.No.650 of 2005 on the file of the Judicial Magistrate, Panruti, Cuddalore District.
For Petitioner : No appearance
For Respondent : Mr.R.Muniyapparaj,G.A.(crl.side)
O R D E R
Animadverting upon the order dated 21.03.2007 passed by the learned Judicial Magistrate, Panruti, Cuddalore District in Crl.M.P.No.3309 of 2006 in C.C.No.650 of 2005, this revision is focussed.
2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision petition would run thus: The learned Additional Public Prosecutor filed application under Section 137 of the Indian Evidence Act for recalling P.W.1 in C.C.No.650 of 2005, so as to mark the M.O., so to say, the weapon of offence. Whereupon, the accused filed objection on the ground that even while P.W.1 was earlier examined before the Court, the weapon was not identified by him and in order to fill up the lacuna, once again he cannot be recalled for the purpose of getting that weapon marked. The learned Magistrate after hearing both sides passed order recalling P.W.1 so as to enable him to get marked the M.O., as requested by the learned Additional Public Prosecutor.
3. Animadverting upon such order, this criminal revision case is focussed on various grounds, the sum and substance of it would run thus:
Simply because earlier in the deposition of P.W.1 the Court had not recorded that P.W.1 failed to identify the same, the prosecution could not take undue advantage in filing the application, so as to get P.W.1 recalled for marking the weapon of offence as M.O.
4. The point for consideration is as to whether there is any perversity or non-application of law, in ordering recalling of P.W.1 so as to enable the Additional Public Prosecutor to get the M.O. marked through P.W.1.
5. Despite printing the name of the learned counsel for the petitioner, none appeared. Heard the learned Government Advocate (crl.side).
6. A plain reading of the relevant records including the order of the lower Court would clearly project and protray that earlier, the learned Additional Public Prosecutor out of over sight could not get the M.O. marked through P.W.1 and in that connection, the lower Court correctly placed reliance on the decision of the Hon'ble Apex Court reported in AIR 1999 SC 2292 [Rajendra Prasad v. Narcotic Cell, through its Officer in charge, Delhi] and allowed the prayer of the learned Additional Public Prosecutor to recall P.W.1 so as to get the M.O. Marked as per law.
7. I could see no case finally decided by the lower Court. Under Section 311 of Cr.P.C., it is a trite proposition of law that at any stage the prosecution could be allowed to recall the witness for sound reasons. Here, the learned Additional Public Prosecutor clearly spelt out that at the time of examining of P.W.1, the weapon could not be shown and marked through P.W.1 and hence he prays for one more opportunity which cannot be denied and correctly and appropriately, appositely and legally, the Magistrate gave that opportunity. G.RAJASURIA,J.,
8. A bare perusal of the copy of the deposition would clearly evince that there is no indication that as alleged by the revision petitioner the weapon was shown to P.W.1 and whereupon he pleaded ignorance etc. As such, what is not before the Court, the revision petitioner cannot try to project and give a distorted picture of it.
9. It is a common or garden principle of law that the observations of the Court as well as the recording of the Court should be taken as such normally. The trial Court itself has not believed the version of the accused on that aspect.
10. At this juncture, I would like to refer to Section 397(2) of Cr.P.C. which would highlight that in respect of interlocutory order, there could be no revision. As such, even on merits as well as on technical grounds, this revision would not lie and accordingly, it is dismissed. Accordingly, this criminal revision case is disposed of. Consequently, connected miscellaneous petition is closed. Gms 29.07.2009
Index : Yes/No
Internet : Yes/No
1. The Judicial Magistrate, Panruti, Cuddalore District2. The Public Prosecutor, Madras.