Sundarakumar and 2 Others vs K. Anandhan

M. Karpagavinayagam, J.—This revision is directed against the order passed by the Judicial Magistrate No. I, Dindigul, dismissing the application filed by the Petitioners u/s 326(1) of the Code of Criminal Procedure

The facts are these:

The Respondent filed a private complaint against the Petitioners for the offences under Sections 379, 403, 406, 420, 426, 506(ii) read with 120 B of I.P.C. before the Judicial Magistrate. Nilakottai, and the same was taken on file as C.C. No. 549 of 1991. P. Ws.1 to 5 were examined. For other witnesses steps were taken to issue summons. However, since the witnesses did not appear on the date fixed, the prosecution was closed and the case was posted for questioning the accused. After questioning, the case was posted for judgment. At this stage, the complaint filed a petition, having been aggrieved over the non- examination of the other witnesses, before the District Judge, Dindigul, u/s 408 of the Code of Criminal Procedure, for transfer of the case to some other Magistrate at Dindigul. Accordingly, after hearing the parties, the District Judge, Dindigul, ordered the transfer holding that the lower Court has failed to take coercive steps to examine other witnesses. Therefore, after the case having bene transferred to the Judicial Magistrate No. I, Dindigul, on the basis of the request of the complainant, summons have been issued to the other witnesses, namely, the doctor and Inspector of Police.

At this stage, a petition u/s 326 of the Code of Criminal/Procedure had been filed by the Petitioners requesting not to summon those witnesses since it would tantamount to conducting a de novo trial. Learned Magistrate after considering the submissions made by the respective parties and on perusal of the petition and counter, dismissed the said application.

A perusal of the records would show that while passing the order of transfer, learned Sessions Judge has observed that it is the duty of the Court to take coercive steps for the appearance of the remaining witnesses. So, on the basis of this observation, the additional witnesses, namely, doctor and Inspector of Police were sought to be examined on the side of the prosecution as they are very important witnesses to prove the case of the prosecution. In fact, the complainant has filed process fee to summon those witnesses and the same was ordered. Such being the case, the Petitioners could not maintain an application u/s 326(1) of the Code of Criminal Procedure, requesting not to Conduct de novo trial. I am not able to comprehend as to how this could be termed as a de novo trial since the Trial Court has only given opportunity to the complaint to examine the witnesses who were not so far examined.

Furthermore, as correctly pointed out in the impugned order, Court has got powers u/s 311 of the Code of Criminal Procedure to summon any witness or to recall the witnesses already examined in order to come to the just conclusion at any stage before judgment is pronounced. Therefore, in my view, the order summoning the two remaining witnesses, to be examined on behalf of the complainant''s side and the order dismissing the application filed by the Petitioners u/s 326(1) of the Code of Criminal Procedure, do not suffer in any manner as the same have been made in accordance with law. Therefore, this revision which has no merits is liable to be dismissed. Accordingly, the revision is dismissed. Consequently, Crl.M.P. No. 6227 of 1997 also stands dismissed.