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IN THE COURT OF THE FAST TRACK MAGILA JUDGE , NAMAKKAL


CMP No:
/2016
in
S.C.No:27/2015
Maruthapillai (aged 76 years)
Son of Sangupillai,
I-ward, Arur,
Namakkal TK & DT.

..

Petitioner/
Accused.

Vs
State Rep. by
Inspector of Police.
Mohanur P.S.

..

Respondent/
Complainant

PETITION HUMBLY SUBMITTED BY THE PETITIONER UNDER


SECTION 311 OF CRIMINAL PROCEDURE CODE
The Petitioner most humbly begs and prays as follows that,
1)

The Respondent police has filed a crime case against the

Petitioner/Accused on 28.11.2009 in Cr.No: 489/2009 under section 376


(i) of Indian Penal Code. The above case has been committed to this
Honble Court and numbered as S.C.No: 272015. The trial of the case
has been reached halfway so far.
2)

The above case is to stand posted today i.e. on 07.11.2016

for further prosecution evidence i.e for the examination PW-13. In the
above case so for as many as twelve more prosecution witnesses i.e from
PW-1 to PW-12 has been examined in chief. Among them, PW-3 and
PW12 has been cross examined so far on the side of the
Petitioner/Accused.
3)

Further it is submitted that the Petitioner/accused is 76 years

old, a Septuagenarian. In the above case the First Information Report as


allegedly filed against the petitioner was on 28.09.2011. After lapse of 5
long years, on 28.05.2015 only the Petitioner was summoned to the Court.
Since then, in the case had been posted for about 50 more hearings so

far. It is humbly and respectfully submitted that this Honble court may be
seen from the case file that the Petitioner/ Accused has been appearing
before this Honble Court for all hearings without fail even at least one
single hearing so far.
4)

Humbly submits further that on 27.08.2015, Witnesses PW-1

to PW-3 was examined in Chief. Among the above said three witnesses
the PW-3 is the victim and she is a deaf and dumb girl. On that day
before ever starting the examination of witnesses, the then presiding
officer of this Honble court informed to the Petitioner/Accused that as the
PW-3 is a mute girl she would be examined with the assistance of one
C.K.Latha, by calling her as an interpreter of the sign languages. When
the said interpreter C.K.Latha was also present in the Court Hall.
5)

Further it is stated that, before ever start of the examination

of witnesses it was understood by the Petitioner/Accused that so called


interpreter C.K.Latha has no special or valid qualification to be a sign
language interpreter and she is also having close nexus with police and
used to witness for them on request. Therefore on the side of the
petitioner/accused it was represented and requested the Honble court
that to ascertain her qualification to be an interpreter in the court of law.
Also it was submitted that there was no documents were given to the
petitioner/Accused along with the copies as to her qualification. For which
the Interpreter C.K.Latha assured to the court as that to produce the
certificates which are relevant to her qualification in the next hearing of the
case.
6)

Further it is stated that among the above said three

witnesses PW1 is the mother of the victim and defacto complainant, the
PW2 is the brother of victim and who is the person first seen the victim

after occurrence and also brought by and they are very important and
material witnesses in this case and their evidence as to the occurrence
would be very much important. Therefore it has become necessary to the
petitioner/accused

to cross examine the above said three witnesses

simultaneously in one single day in order to avoid teaching or tutoring by


the prosecution and to make devoid the addition, deletion or amplification
from witnesses by themselves to fill up lacuna the deposition of each
other. In this junction it was a situation where the petitioner/Accused was
unable to ascertain the real qualification of the interpreter, hence the
petitioner/Accused did not cross examine the witnesses on that day.
Therefore the witnesses were only examined in chief on that day and the
case was adjourned to 12.09.2015 for further prosecution witnesses.
7)

It is submitted that before 27.08.2015, the on which the

witnesses PW 1 to PW3 were examined in chief, there was five more


hearings were posted in this case. The Petitioner/Accused were present in
all five hearings. It is submitted further that after the chief examination of
PW1 to Pw3, the case had been adjourned to 12.09.2015, 06.10.2015,
28.10.2015, 16.11.2015, and to 24.11.2015, neither the interpreter present
before this Court nor submit any certificate as assured. Hence, in the next
hearing i.e. on 25.12.2015, the Petitioner/Accused filed a petition before
this Honble Court for recall of the witnesses PW-1 to PW-3, so as to
cross examine them and the same was allowed. And on 05.01.2016, a
process memo also filed along with process fee for summoning the
witnesses PW-1 to PW-3.
8)

Thereafter, the case was adjourned to 19.01.2016 for the

presence of witnesses PW-1 to PW-3 since they did not present the case
was again adjourned to seven more hearings for the same cause i.e. to

28.01.2016, 11.02.2016, 18.02.2016, 25.02.2016, 23.03.2016 and to


04.04.2016 but no witness turn to witness box.
9)

Thereafter, as the presiding officer of this Honble Court was

changed. Because of the above said change of circumstance the


petitioner/accused was could not demand or make any representation to
produce the certificates of interpreter as the present presiding officer of
the Honble court is not aware about the oral assurance of the interpreter
made before the court about production of her certificates. Therefore it
was decided by the Petitioner/Accused to raise his agitation about the
qualification of the interpreter in a written petition as per law and a petition
u/s. 119 of the Evidence Act was filed accordingly on 04.04.2016. in which
the Petitioner/Accused had agitated the qualification of the interpreter also
prayed the court to ensure the guidelines made by our Honble High Court
and Apex Court in various occasions. And also had prayed for strike out
the deposition of PW-3 made by her in examination in chief as the same
was not recorded as per law. Further it was also prayed that to ensure the
noble and righteous conditions laid down in section 119 of the Indian
Evidence Act before ever recording the evidence of witnesses like PW3 ,
such as appointing a legally Qualified interpreter and to record not only the
interpretation of the interpreter also to record the signs of witness and also
prayed to videograph the witness examination.
10)

The petition filed by the Petitioner/Accused was numbered

as CMP 1652016 and the case was then adjourned to 06.04.2016, and
further to 12.04.2016, 15.04.2016, and then to 20.04.2016. Finally on
20.04.2016

the

above

C.M.P.No:

1652016

filed

by

the

Petitioner/accused was dismissed by this Honble Court. Further it is also


worthwhile to state that the above said all seventeen hearings i.e. from

12.09.2015 to 20.04.2016, the Petitioner/Accused was continuously


present before this Honble court without fail.
11)

Further it is submitted that despite the representations made

by the Petitioner/Accused, this Honble court without afford any


reasonable time to take appropriate steps to file any appeal or revision
against order of this Honble Court in C.M.P.No: 1652016 insisted the
Petitioner/Accused to pay process again to the summon the witnesses
PW-1 to PW-3. Only because of the incision of this Honble court the
Petitioner/Accused paid fee of process to summon PW-1 to PW-3 without
any other go. Though the petitioner/accused paid the process fee as
ordered by the court he also had taken appropriate Steps to file appeal
against the order of this Honble Court in above said CMP 1652016
before the Honble Judicature of Madras High Court.

Accordingly the

appeal was filed before the Honble Judicature of Madras High Court and
numbered as Crl OP No: 127672016 and Crl M.P.No: 6671 to 2016.
12)

Futher it is stated that within in week from the dismissal of

the above said CMP No.165/2016 of the petitioner/Accused, on


27.05.2016, despite the representations made by the Petitioner/accused
about the initiations taken by him for filing an appeal before the Honble
High Court against the order of this Honble Court in above said CMP
1652016 this Honble court insisted the Petitioner/Accused to cross
examine the witness PW3 with the assistance of C.K.Latha the so called
interpreter. Therefore the Petitioner/Accused, was filed a memo before this
Honble court stating the above said facts and asked this court to adjourn
the case for a some other date. But this Honble court without considering
the facts leveled in the said memo, returned the same by stating as want
of petition with CF to seek adjournment. This Honble court at any point of

time did not want to consider about the hardships that would may cause
to the petitioner/accused in the event of admission of plea made by him in
the appeal filed before the Honble Judicature of High court of Madras.
On the contra this Honble court recorded as that the witness were not
cross examined even after sufficient opportunity

given to the

Petitioner/accused and adjourned the case to 08.06.2016 for the


examination of further prosecution witnesses by closing the evidence of
the PW1 to PW3. As such, the case was further adjourned to 13.06.2016.
22.06.2016,

01.07.2016,

12.07.2016,

21.07.2016,

02.08.2016

and

03.08.2016 for the further prosecution witness of LW4 to LW6. But on all
those hearing no witnesses were present. On the other hand, the
Petitioner/Accused were present on above said all eight hearings without
fail.
13)

Further

it

is

submitted

that,

as

prayed

by

the

Petitioner/Accused in his appeal with Crl OP No: 127672016 and Crl MP


No: 66712016, filed against the order of this Honble court passed in
CMP NO;165/2016 before the Honble Judicature of Madras High Court,
the Honble high court was pleased to ordered and directed this Honble
Court to appoint a qualified interpreter as per the law which required to
assist for the cross examination of the PW3 on 21.06.2016 and the same
was received by this Honble Court on 21.07.2016 that may be seen from
the notes order of this Honble Court.
14)

Subsequently, the case was adjourned to 08.08.2016 then to

10.08.2016 and to 16.08.2016 for the examination of LW4 to LW6 and for
the cross examination of PW3 with the assistance of a qualified interpreter
as ordered and directed by this Honble High Court. Though the above

said three hearings the Petitioner/Accused was present neither the PW3
nor any qualified interpreter was present.
15)

Further it is submitted that finally on 18.08.2016 the

PetitionerAccused was present, witness PW3 also was present. While


one Mr.E.Yuvaraja a local Advocate was introduced by this Honble court
as an interpreter, and also it has been claimed by this Honble court that
the said local advocate Mr.E.Yuvaraja has summoned as per the order of
the Honble Court, and ordered the Petitioner/Accused to cross examine
the witness PW3 with assistance of said local Advocate E.Yuvaraja.
Forwhich, it was contented on the side of the Petitioner/Accused that the
said local advocate Mr.E.Yuvaraja has no qualification to be an interpreter
as he never ever did any course on that count and also he has no
experience in sign language interpretation. For which it was claimed by
this this Honble court that the local advocate Mr.E.yuvaraja is an
interpreter recognized by the High court and he has been summoned only
as per the order of the Honble High court by showing an Annexure of a
copy of a circular of the Hon;ble high court.
16)

On perusing the said circular of the Honble High court with

ROC No: 1729/2010/RR Dt 02.06.2010. Petitioner/Accused read out


recitals of the same in open court and humbly represented as that said
circular order has two folds in the first fold our Honble High court has
asked the names of experts and sign language interpreters who are all
available in that locality and in the second fold it has been asked to
produce the list of Panel Advocates to each court in districts. And also
represented as that the circular order shown in the court has only list of
panel advocates but not has any list of experts and sign language
interpreters as stated in the circular and the names shown in that

annexure panel lawyers of district Legal Aid hence those are not experts in
sign language and not eligible to be an interpreter.
17)

Further

it is humbly submitted

as that

despite

all

representations and explanations made by the Petitioner/Accused this


Honble court again insisted the Petitioner/Accused to cross examine the
witness PW3 with the assistance of above said Advocate Mr.E.Yuvaraja
failing which it was also told by this Honble Court that the bail of the
Petitioner/Accused would be cancelled. Therefore the Petitioner/Accused
agreed to cross examine the witness PW3 with the assistance of said local
advocate E.Yuvaraja though he has no qualification to be an interpreter as
per law. Further, it was humbly represented to the Honble court by the
Petitioner/Accused that it has been told by this Honble Court in its order
passed in CMP No:165/2016 and the Honble High court has also been
reiterated in its order passed in CrlOP No: 12767/2016 that if the
petitioner/accused had any objection about the qualification of interpreter
it would have been raised at the time of chief examination itself. Therefore
now it is necessary to the Petitioner/Accused to agitate the qualification of
the interpreter at least at the time of cross. Hence it was requested by the
Petitioner/accused that so as to enable him to question the interpreter
about his qualification be administrated Oath on him.

But this Honble

rejected the request made by the Petitioner/Accused stating that as said


Mr.E.Yuvaraja has not been cited as witness list he could not put in to the
witness box therefore could not be administered oath on him.
18)

Hence on the side of the Petitioner/Accused, it was

represented before this Honble Court as that permit him to file a petition
with his agitations regarding the qualification of the interpreter and as to
the non compliance of the provisions of section 119 of Indian Evidence

Act, for which the Honble Court was pleased to grand permission and
asked Petitioner/Accused to file that petition at once. Hence the
petitioner/Accused, prepared the said petition in the open court at once.
But before submitting the said Petition by the Petitioner/Accused, the
Honble Court was pleased to cancel the bail of the Petitioner/Accused
and ordered to send him into judicial custody. All its culminate, this Honble
Court received the said petition after the Petitioner/Accused send to jail
and has endorsed in that petition as check and call on and adjourned the
case the same other day.
19)

Further it is submitted that, then the case was adjourned to

26.08.2016, from on that date the case again adjourned to 30.08.2016 and
on date on which the above Petition filed by the Petitioner/Accused was
returned with remarks as following that,
(i) If the interpreter summoned as per direction of Honble high cort
is alleged to be not qualified, how this petition can be maintained before
this court to be stated
(ii) how a person without putting into witness box can be sworned to
be stated.
20)

Stating further that case was then adjourned to 07.09.2016

for further presentation evidence. In between, the Petitioner/Accused


prepared a bail petition before this Honble Court the same was dismissed,
then filed a bail appeal before the Honble High Court the same also was
dismissed, but said order of dismissal passed by the Honble Judicature of
High Court of Madras in Crl OP No: 210622016 dated 21.08.2016,
directed again this Honble Court to appoint a qualified interpreter so as to
assist for the cross examination of the PW3, the copy of the order along
with memo was filed by the Petitioner/Accused on 06.10.2016.

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21)

During that time a revision petition has also been filed by

the Petitioner/ Accused before the Honble Judicature of Madras High


Court Questing the legality of the order of this Honble Court passed on
18.08.2016 by cancelling the bail of the petitioner against the seer
principal of natural justice and without giving him any opportunity to
defend and against the provisions of law and the same has

been

numbered as Crl RC No: 11302016 and same is pending for final


hearing.
22)

Meanwhile, on 30.08.2016 PW4 to PW6 were examined in

chief, further on 07.09.2016, PWs 7 to 9 were examined in chief, such as


on 14.09.2016, the PW10 was examined in chief and on 06.10.2016,
PW11 was examined in chief. But on the side of Petitioner/Accused those
witnesses were not cross examined . Because the witnesses PW1 to PW3
who were examined in earlier to them were not cross examined yet
because of the reasons stated insupra. As detailed above the PW1 is the
complainant, PW2 is the first seen of victim after occurrence and PW3 is
the victim and they are the material witnesses of this case and their
evidence also closely interlinked. Therefore their evidence would be very
much important and relevant to cross examination the further other
witnesses. Hence, the Petitioner/Accused was not able to cross examine
the further witnesses who were examined later to PW1 to PW3.
23)

Further it is stated that the revision petition filed by the

Petitioner/Accused before the Honble Judicature of High Court Madras


questing the legality of the order of this Honble Court passed on
18.08.2016 by cancelling the bail of the petitioner with CrlRC
No:11302016 had been ordered by the Honble high court to be taken
up along with final hearing petitions. Hence the date of hearing and

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disposal of the said revision petition could not be determined in certain.


On the other hand this Honble court was not accepted the plea pause the
proceedings of this case as the said Revision petition is pending before
the Judicature of the Honble Madras High Court. As there was no stay
before the Judicature of the Honble Madras High Court this court
proceeded the case further by examining the prosecution witnesses in
row. All its culminate the Petitioner/Accused a septuagenarian is being
under judicial custody more than 45 days at salem central jail. As the case
is posted for hearing on every successive days in a row by this Honble
court it has become necessary to be presented the Petitioner/Accused on
all such hearings for which the petitioner/Accused have to travel more
than 110 kilometers every day. Hence the health condition of the
Petitioner/Accused became worse day by day.
24)

Upon considering the above said facts, on 06.10.2011 on the

side of Petitioner/Accused, a memo was filed before this Honble Court by


expressing his willingness to cross examine the witness PW3 stating the
direction of Honbe Jducature of High Court of Madras in two occasions
on

the

miscellaneous

Petitions

which

were

filed

by

the

by

the

Petitioner/Accused.
25)

Further

by

recording

the

memo

filed

Petitioner/Accused on 06.10.2016, this Honble Court was pleased to


issue summon again to the above said C.K.Latha to be assist as
interpreter for the cross examination of PW3 and adjourned the case to
07.10.2016 and then 13.10.2016 further on 14.10.2016, 17.10.2016,
19.10.2016,

17.10.2016,

19.10.2016,

20.10.2016,

21.10.2016,

22.10.2016, all the above hearings neither the PW3 nor the interpreter
were present. Meanwhile on the side of Petitioner/Accused, a petitione

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was presented before this Honble Court, u/s. 311 of CrPC for recalling
the witness of PW1 and PW2 so as to enable to be cross examined them
along with PW3 in a same day, as all three witness are material one and
the statement and deposition about the factual matrix would be interlinked.
And also pleaded in that petition that if the PW3 alone cross examined
then it would pave way to the prosecution to use the PW1 & PW2 to fill
up the lacunas on the deposition of PW3. The above said petition was
numbered as CMP 5232016 and dismissed the same on 21.10.2016. In
the order of dismissal, this Honble Court did not discussed the said facts
on merit but has stated that there was no reason adduced by the
Petitioner/Accused for non-cross examining the witness on that date.
26)

Thereafter the Petitioner/Accused cross examined PW3 on

24.10.2016 with the assistance of the same interpreter C.K.Latha. As well


the above said interpreter was examined as PW12 on 03.11.2016, and
she was also cross examined by the Petitioner/Accused on the same date
itself. At this juncture it is necessary to the petitioner/Accused to recall the
rest of witnesses to cross examine them in order to prove his case and to
disprove the case of the prosecution. But for the reasons sated above,
under what circumstance driven the Petitioner/Accused for non cross
examining of the witnesses have to be bring in to the knowledge of this
Honble court. Hence it has become necessary and warranted to this
Petitioner/Accused to file this petition with elaborate details of the non
cross examining of the prosecution witness on that date when they were
examined in chief. Therefore the Petitioner/Accused filed this petition and
prays this Honble court to order to recall the prosecution witnesses PW1,
PW2, PW4, PW5, PW6, PW7, PW8, PW9, PW10 and PW11, so as to
enable the Petitioner/Accused to cross examine them.

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27)

Further it is submitted the non cross examination of the

above said witness neither willful nor wonton, it has happened only due to
the reasons detailed hereinabove.
28)

It is also worthwhile to be stated that as per the undertaken

set out in the memo filed by the Petitioner/Accused himself on 06.10.2016,


the Petitioner/Accused cross examined PW3 on 24.10.2016 with the
assistance of the interpreter. As well the above said interpreter was
examined as PW12 on 03.11.2016, and she was also cross examined by
the Petitioner/Accused on the same date.
29)

Further it is stated that the cross examination of the above

said witness would certainly enable the Court to arrive the truth and to
avoid the failure of justice. Also, cross examination of the said witness by
the accused only would enable him to prove his defense and to disprove
the case of the prosecution. If the Petition is not allowed, it would cause
great injure to the Petitioner/Accused and also leads to failure of justice as
well.
30)

Further it is submitted that Honble Apex Court also has held

is a case reported in AIR 1991 SC 1346 that Petition for recall of


witness have to entertain by Courts to find the truth, and prejudice
should not be caused to the accused and genuine prays should be
allowed. Also in Nitesh Vs. State of Rajasthan reported in 2012(2)
Crimes 637 (Raj) it has been hold that the object underlying the
provisions of Section 311 CrPC is there may not be failure of justice
on account of mistake of either party in bringing the best available
evidence on record.
31)

Further it is humbly stated that the prayer of the

Petitioner/Accused to recall the above stated witness for cross examintion

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is genuine one and only because of the reasons detailed above they were
not cross examined at that time of examination of chief itself. Those
reasons are also valued and well grounded.
32)

Further the Petitioner undertakes herewith that he is ready to

cross examine the said witness on any date convenient to this Honble
Court and for the witness, in the event of allowing Petition and recall the
witnesses.
33)

Further it is also important to state that the further

prosecution witness of the case to be examined are the investigation


officers, the cross examination of the investigating officers would
meaningful only they are cross examined after witness cross examination
of the above said witnesses.
34)

The Petitioner/Accused herewith also undertakes that to

cross examine the further prosecution witness without any delay.


Therefore it is most humbly prayed that this Honble Court may be
pleased to pass an order to recall the witness PW1, PW2, PW4, PW5,
PW6, PW7, PW8, PW9, PW10 and PW11 So as to enable the
Petitioner/Accused to cross examine them to prove his defense and to
disprove the case of prosecution and thus render justice.

Namakkal
05.11.2016

Counsel of the Petitioner/Accused

15

IN THE COURT OF THE MAGILA


COURT, NAMAKKAL
CMP No:
/2016
in
S.C.No:27/2015
Maruthapillai
..

Petitioners/
Accused.

Vs
State Rep. by
Inspector of Police.
Mohanur P.S.
..
Respondent/
Complainant

PETITION HUMBLY
SUBMITTED BY THE
PETITIONER UNDER SECTION
311 OF Cr.P.C.

By Counsel:
Ka. Jeyaprakash, B.A.,B.L.,
Advocate,
Namakkal.

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