@JUDGMENTTAG-ORDER
M. Chockalingam, J.@mdashWhen this matter comes for admission this day, this Court is of the considered opinion that the revision itself can be disposed of by hearing both sides and accordingly, hearing both sides, the following order is passed.
2. An order of the Judicial Magistrate, Thiruvaiyaru, dated 25.7.2005 dismissing on application filed by the petitioner/accused in Crl. M.P. No. 2581 of 2005 u/s 311 of Cr.P.C., is challenged in this revision.
3. Admittedly, the petitioner/accused stands charged for the offences under sections 279, 337 and 304A of the I.P.C. and three witnesses were marched by the prosecution and that P.W.1 and P.W.2 were examined on 2.7.2002 and P.W.3 on 17.9.2002 in chief and that all these witnesses were not cross-examined by the petitioner/accused side. After lapse of a period of three years, an application was filed seeking to recall those witnesses but the said application was seriously opposed by the prosecution and the lower Court did not see any ground to recall the witnesses and hence, dismissed the application.
4. Aggrieved over the said order, the petitioner/accused has brought forth this revision petition before this Court.
5. Heard the learned Counsel for the petitioner and also the learned Counsel for the State.
6. In the instant case, the case of the prosecution is solely rested upon the evidence of P.Ws. 1 to 3, and admittedly, they were not cross-examined on the side of the petitioner/accused. It is true that there was a delay of three years and there were 40 hearings in between the passage of time. The only ground that was taken before the Court below and equally here also is that the NBW against the petitioner was pending all along and under the circumstances, the witnesses could not be cross-examined by the side of the petitioner/accused. This Court feels that the reason adduced by the petitioner/accused is not convincing to excuse the attitude of the petitioner and, at the same time, this Court has to consider that interest of justice should hot fail. In the circumstances, this Court is of the considered opinion, that an opportunity should be given to the petitioner/accused to cross-examine those witnesses, in order to enable the Court below to arrive at a correct decision in the matter. If the witnesses are not cross-examined by the petitioner/accused side, the only possibility would be, arriving at a conclusion on the evidence recorded in Chief examination, which could cause injustice to the petitioner/accused.
7. Under the circumstances, this Court is of the considered opinion that the witnesses have got to be recalled for the purpose of cross-examination by petitioner/accused side. At the same time, this Court is of the view, that the petitioner should be directed to pay costs of Rs. 2,000 (Rupees two thousand only) to the Legal Aid Services Centre, Thanjavur and produce receipt therefore before the Court concerned within one week here from and on receipt of the same, the Court concerned is directed to give an opportunity to the petitioner to recall the witnesses P.Ws. 1 to 3 for the purpose of cross-examination by the petitioner/accused by fixing a dated thereof.
8. With the above observation, this revision petition is ordered.
