CRL RC/1717/2003 of 1. FR.JOHN JOSEPH Vs STATE OF TAMILNADU on 10 December 2003

:O R D E R

Accused 1 to 3 in S.C.No.25 of 1998, on the file of the DistrictSessions Judge, Kanyakumari District at Nagerocil, have filed this Revisionagainst the order passed by the learned District Judge in Crl.M. P.No.2837 of2003 dated 20.9.2003

2. The petitioners have filed Crl.M.P.No.2837 of 2003 under Section 91 Cr.P.C. to summon the 161(3) Cr.P.C. statements of the witnesses examinedin Cr.No.2 of 2002 and the final report in the said case from the AdditionalDirector General of Police, CBCID, Chennai for cross-examining the witnesses.

3. The fourth accused in the above said case, preferred Crl.R.C.No.1510 of 2003 against the order passed in Crl.M.P.No.2103/2003 filed underSection 91 Cr.P.C. before this Court and this Court dismissed the same on theground that the documents purported are only to the harassment said to havebeen meted out to the accused for the period between 4.9.1997 and 6.9.1997 andthe murder is said to have taken place in the year 1995, and therefore, the socalled documents pertaining to the harassment will not in any way be helpfulto the accused. Relying upon the said order of this Court, the learnedDistrict Judge has negatived the prayer of the accused for sending of thedocuments.

4. Charges framed against all the accused have been sent for by thisCourt. A perusal of the charges framed would show that charges 11 to 15relate to the occurrence said to have taken place on 5.9.1997 at 11.00 AMbased on which charges under Sections 147, 148, 450, 364 and 506(2) IPC havebeen framed. If really the accused were taken to custody on 4.9.1997 by theofficers, who are accused in Cr.No.2 of 200 2, on the file of CBCID,Tirunelveli, is true, the occurrence alleged to have taken place on 5.9.1997at 11.00 AM should have been false, and therefore, the accused would beentitled to prove that the alleged occurrence said to have taken place on5.9.1997 based on which the very F.I.R. was lodged is false. In thatcontext, the statement of witnesses examined in Cr.No.2 of 2002 assumeimportance. It is pertinent to note that in Cr.No.2 of 2002, on the file ofCBCID, Tirunelveli Division, investigation had been over and even sanction ofthe Government was obtained. But, as subsequent development, the HonourableFirst Bench in Writ Appeal Nos.3128 to 3130, 3214 and 3215 of 2002 has orderedfresh investigation based on the telegraphic complaint of one Ms. AnjelaRajan.

5. Learned Public Prosecutor submits that a clarification petitionfiled in the above writ appeals had also been recently dismissed on 25.11.2003 except with a modification that instead of — obtaining necessarysanction from the Government under Section 197 of the Code of CriminalProcedure , be “in accordance with law”. But the fact remains that furtherinvestigation has to be conducted on the telegram given by Ms. Anjela Rajanto the Honourable the Chief Justice of India and the Honourable the ChiefJustice of High Court, Madras and the Chairman, Human Rights Commission.However, it is a fact that except a similar complaint on similar allegation,investigation was already over and sanction was already accorded. Therefore,the statement of witnesses so examined in Cr.No.2 of 2002, on the file ofCBCID, Tirunelveli, relating to the alleged occurrence of arrest and tortureof the petitioners from 4.9.1997 onwards will be a relevant fact to disprovethe charges 11 to 15 now framed against the petitioners.

6. Learned Public Prosecutor also submits that if necessary the petitioners can be permitted to cross-examine the witnesses already examined only to the extent of the arrest alleged on 3.9.1997 and the occurrence saidto have taken place on 5.9.1997, that is, with regard to charges 11 to 15.

7. It is open to the petitioners to cross-examine such of thosewitnesses, who have deposed about the incidents alleged to have taken place on5.9.1997 by contradictory statement, if any, with regard to arrest on4.9.1997/5.9.1997 found in Cr.No.2 of 2002. With this observation, thisRevision Petition is allowed and the learned District Judge is directed togive an opportunity for sending for the documents in Cr.No.2 of 2002, on thefile of CBCID, Tirunelveli division and permit the petitioners tocross-examine on the question of the alleged arrest on 4.9.1997 or 5.9.1997and incidents narrated in charges 11 to 15. Learned District Judge isdirected to dispose of the case as expeditiously as possible.

8. To the extent indicated above, the Revision is allowed.Consequently, Crl.M.P.No.11167 is closed.

Index : YesInternet: Yes

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To

1. The Principal Sessions Judge, Kanyakumari District atNagercoil.

2. The Inspector of Police, Kuzhithurai, KanyakumariDistrict.

3. The Public Prosecutor, High Court, Madras 104.