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Judgment
P. Devadass, J. - A1 and A2 in C.C. No.31 of 2010 on the file of the learned XI Additional Special Court [CBI Cases], Chennai, aggrieved by the order of the Trial Court dated 25.01.2016 passed under Section 311 Cr.P.C. in Crl.M.P. No.247 of 2016 directing them to deposit Rs.22,000/- as a condition to recall the witnesses for their cross examination, this Criminal Original Petition has been filed.
Learned counsel for the petitioners would submit that huge amount has been directed to be deposited as a condition precedent to recall the witnesses. It is unsustainable in law.
Learned Special Public Prosecutor [CBI cases] submitted that the petitioners shall not be allowed to drag on the trial.
I have anxiously considered the rival submissions and perused the impugned order and materials on record.
One''s presumption of innocence is his birth right, it will be in tact, until it is displaced after a fair trial [See Article 21]. Fair trial consists of giving reasonable opportunity to the accused to defend himself effectively with the assistance of a lawyer [See Article 22(1), Constitution of India]. There shall be no fetters to the accused to exercise his birth right.
The trial court is an umpire, neither on the defence side nor on the prosecution side but on the side of justice. The trial court shall give opportunity to both sides to put forth, produce their evidence, so as to enable the court to render justice.
In Crl.O.P. No.2855 of 2016 dated 10.02.2016 in Krishniah v. State through Inspector of Police, CBI/ACB/Chennai under similar circumstances, I have held that in view of Article 21, 22(1) of the Constitution of India and Section 243(3) Cr.P.C the accused can be asked to pay only reasonable expenses of the witnesses.
Now in the facts and circumstances of this case, directing the petitioners to deposit Rs.22,000/- to recall the witnesses is not in accordance with law.
A1 and A2 have jointly filed the recall petition. The witnesses who are to be summoned, who are to be cross examined by both the accused are one and the same. Calculating the expenses per head will not be fair and it will not be a step in providing them fair trial. When they filed joint recall petition, the burden should be shared equally by them. If one accused volunteers to bear the entire expenses, there is no bar for him to do so.
Taxing the accused to pay some amount to Legal Aid Authorities is axing his right to defend [See Article 21, 22(1) Constitution]. If he volunteers that is a different matter.
In view of the foregoings, ordered as under:
S.No.
PW No.
Name
Working as
Residence
Amount ordered by the trial court Rs.
Amount ordered by this Court towards to and fro expenses and for subsistence allowance Rs.
1
1
Narasimhan
Branch Manager
Coimbatore
8,000
800 + 600
2
2
Rajagopal
General Mechanic
Chennai
750
75 + 75
3
3
Kalaivanan
Seepoy
Chennai
750
75 + 75
4
4
Jayaseelan
Electrician
Chennai
750
75 + 75
5
5
Kamalakannan
Plumber
Chennai
750
75 + 75
6
6
Srinivasan
MAT Electrician
Tiruperumpattur
1000
100 + 75
7
7
C. Manoharan
MAT Mechanic
Chennai
750
75 + 75
8
8
Mahalingam
Peon
Chennai
750
75 + 75
9
9
Kumaranathan
MAT Fitter
Chennai
750
75 + 75
10
10
M. Savithri
Asst. Cum Clerk Corporation
Chennai
750
75 + 75
11
11
A. Menaka
Retd. Head Master
Chennai
750
75 + 75
12
15
S. Shekar
Technician, Railways
Arakonam
2000
200 + 75
13
30
Mohan
Businessman
Chennai
750
75 + 75
14
32
B. Ramamurthy
Retd. Bank Manager
Chennai
750
75 + 75
15
33
Gayathri
Asst. GM
Chennai
750
75 + 75
16
36
S. Mana
Divisional Cashier, Railways
Vellore
2000
250 + 75
Total
3,975/-
(i) The direction of the trial court directing the petitioners to deposit Rs.10,000/- each to the Legal Aid Fund is set aside.
(ii) Rest of the order of the trial court is modified to the effect that A1 and A2 shall deposit Rs.1,988 and Rs.1,987/- respectively in the trial court within three days from the date of receipt of a copy of this order.
(iii) The witnesses shall be examined in a phased manner and the date of summoning the witnesses shall be fixed by the trial court after giving opportunity to the defence and to the prosecution.
(iv) It is made clear that when the witnesses are in attendance, no deferring of their cross examination shall be permitted.
With the above direction, this petition is disposed of. Consequently, the connected miscellaneous petition is closed.