Shanmuganathan and Others vs The State

G. Rajasuria, J.—These petitions have been filed to get set aside the orders passed by the learned Assistant Sessions Judge, Thoothukudi, in Cr.M.P. Nos. 172 and 173 of 2010 in S.C. No. 206 of 2009 vide order dated 02.11.2010.

The epitome, and the long and short of the facts absolutely necessary and germane for the disposal of this petition would run thus:

The police initially registered the case in Cr. No. 126 of 2008 for the offences punishable under Sections 147, 148, 341, 324, 506(ii) and 307 I.P.C and subsequently, the case was altered into one under Sections 147, 148, 341, 324, 326, 506(ii), 149 I.P.C read with Section 307 I.P.C. and the police investigated into the matter and laid the police report and now, the matter is pending before the learned Assistant Sessions Judge, Thoothukudi, who framed the charges. The witnesses were examined and cross-examined. Now, the matter is at the stage of examining the Investigating Officer, whereupon the Public Prosecutor filed Cr.M.P. No. 172 of 2010 u/s 311 Cr.P.C to summon the medical records concerned from the private hospital and also to summon the Doctor concerned and mark the said medical records through him by way of adducing additional evidence. The Public Prosecutor also filed Cr.M.P. No. 173 of 2010 for the purpose of summoning the Monday Petitions given to the Superintendent of Police by one Thangavel and Saraswathi.

Counters were filed. However, the learned Assistant Sessions Judge, in one line order, allowed both the applications.

Being aggrieved by the said order, these petitions have been filed.

Heard both sides.

The learned Government Advocate (Criminal Side) would put forth and set forth his arguments to the effect that for the purpose of proving the motive part of the crime, summoning of those Monday Petitions was necessitated and that in order to buttress and fortify the prosecution case that the accused attempted to murder the injured, further medical evidence also was sought for to be secured and that relating to such evidence, the accused could have no objection.

Whereas the learned Counsel for the Petitioners/accused would submit that already, the Doctor from Tirunelveli High Ground Hospital was examined; the medical records were marked; the Doctor also gave opinion that the injured sustained grievous injuries and in such a case, there was no necessity at all for the Court to summon the medical records as well as the Doctor from the private hospital by way of giving opportunity to the prosecution to adduce evidence that after discharge from the Government Hospital, the injured took treatment in the private hospital. According to him, it was not the case of the prosecution at any point of time to the aforesaid effect prior to the filing of the filing of the application.

The learned Counsel for the Petitioners/accused would also submit that the occurrence itself took place on 09.06.2008, whereas the Monday Petitions were purported to have been given to the Superintendent of Police by the said Thangavel and Saraswathi on the same day and absolutely, no relevance could be seen in those Monday Petitions. As such, he prays for dismissing both the petitions.

Relating to the order passed by the learned Assistant Sessions Judge in Cr.M.P. No. 172 of 2010 in summoning the medical records and the Doctor, I would like to point out that absolutely, no reasons are found set out in the order. It is the basic principles of criminal jurisprudence that whenever any judicial order is passed, it should be a speaking order. There should be reasons found spelt out in the order itself.

Be that as it may, cutting across such technicalities, even if the matter is viewed, it is glaringly and palpably, obviously and axiomatically, clear that the prosecution did choose to summon additional medical records not from the same Government Hospital, but from the private hospital wherein allegedly the injured took treatment subsequently. There is no indication that the injured was discharged from the Government Hospital prematurely or at the request made by the injured himself so as to enable him to take further treatment elsewhere. P.W.1 also did not speak about the alleged factum of he having taken treatment from such private hospital. In such a case, I am of the considered opinion that the question of adducing additional evidence by summoning the private Doctor and to produce medical records would not arise at all. Without assigning any reason, the learned Assistant Sessions Judge simply allowed the applications.

Hence, I am of the considered view that the order passed by the learned Assistant Sessions Judge, Thoothukudi, in Cr.M.P. No. 172 of 2010 in S.C. No. 206 of 2009 dated 02.11.2010, is liable to be set aside and accordingly, the same is set aside.

In respect of the order passed by the learned Assistant Sessions Judge, Thoothukudi, in Cr.M.P. No. 173 of 2010, once again, I would like to point out that it is an one line order and the learned Assistant Sessions Judge was not expected to pass such order throwing to winds the legal requirements and he should give reasons in his order.

The learned Counsel for the Petitioners would submit that the motive part of the crime is insignificant; there are eyewitnesses in this case; the injured examined himself along with other witnesses and that the prosecution cannot try to fill up the lacuna. He would further argue that no such Monday Petitions were given by those persons.

Whereas the learned Government Advocate (Criminal Side) would submit that during the cross-examination of P.W.1, suggestions were put by the defence

Motive is a double edged weapon. Had on the side of the accused there been some suggestion accepting the motive attributed, then the matter would have been different. It appears that there was total denial of the motive part of the crime as stated by P.W.1 by the accused, which alone necessitated the Prosecutor to summon the documents concerned namely the Monday Petitions from the Superintendent of Police concerned.

At this juncture, the learned Counsel for the Petitioners appropriately and appositely would submit that under the guise of summoning those Monday Petitions, they are also trying to examine two witnesses namely Thangaraj and Saraswathi who purportedly gave those Monday Petitions, so as to fill up the lacuna.

I could see considerable force in the submission of the learned Counsel for the Petitioners that the examination of the said Thangaraj and Saraswathi would not arise when the matter is ripened for examination of the Investigating Officer. On the other hand, the Prosecutor felt that it is better to buttress the motive as suggested by P.W.1 by summoning those documents.

I am of the considered opinion that merely if the Official who is in possession of the said documents is summoned, the purpose would be solved. It is trite proposition of law that the Superintendent of Police concerned, if he is in possession of the said documents, could depute his Subordinate who is dealing with the same to attend the Court and the Court could mark the documents through him.

Accordingly, the order passed by the learned Assistant Sessions Judge, Thoothukudi, in Cr.M.P. No. 173 of 2010 in S.C. No. 206 of 2009 dated 02.11.2010 is modified to the extent indicated above.

In the result, Crl.O.P(MD) No. 14142 of 2010 is allowed and Crl.O.P.(MD) No. 14143 of 2010 is partly allowed. Consequently, the connected Miscellaneous Petitions are closed.