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Judgment
V. Kanagaraj, J.—The above criminal original petition has been filed praying to set aside the order dated 1.4.2003 made in
Crl.M.P.No.689 of 2003 in C.C.No.1100 of 1999 to recall the petitioner as P.W.2, which is pending on the file of the Court of XI Metropolitan
Magistrate, Saidapet, Chennai.
On a perusal of the materials placed on record, upon hearing the learned counsel for the petitioner, learned counsel for the interver and the
learned Government Advocate on the criminal side, it comes to be known that the petitioner is the Director of M/s. Ramaniam Real Estates Private
Limited, Gandhi Nagar, Adyar, Chennai and he is P.W.2 in the said case, which is registered on a complaint lodged by one Mohan against his
sister''s daughter by name Maragatha Mani along with two other persons for the offences punishable under Sections 466, 471 and 474 IPC. The
petitioner would submit that the said Maragathamani sold her lands along with two cents belonging to the said Mohan as his power agent to the
customers of the petitioner and the sale deeds were also executed by the said Maragathamani; that all of a sudden, after the buildings were
constructed, problems started to galore and the said Mohan issued a lawyer''s notice on 28.11.1995 to the petitioner and the said Maragatha Mani
stating that the said Maragathamani forged the power of attorney and sold the lands without his consent; that the said notice was replied by the
petitioner on 21.12.1995 and subsequently another notice was also issued by the said Mohan on 5.6.1997, which was also replied by them on
14.6.1997; that in the meantime, the said Mohan, has lodged a complaint before the respondent herein, who issued a notice to the petitioner to
attend an enquiry on 15.6.1996; that on receipt of the said police notice under Sections 91 and 160 Cr.P.C., he sent a reply through registered
post on 17.6.1996 narrating all the incidents; that earlier, on 15.2.1996, the complainant received all the relevant papers from his Advocate.
The petitioner would further submit that thereafter he was not examined and no statement was given by him orally to anybody earlier or
subsequent to 17.6.1996, the one which he sent in writing; that thereafter also, the Inspector of Police sent notices to come to his Office for giving
statement and on no occasion, he has recorded any statement other than the one given by him in writing; that thereafter, he received summons in
the above matter from Court to depose evidence as prosecution witness and the Police, who came to serve the summons informed him to come
and depose what he has given in writing earlier on 17.6.1996; that on various occasions, the case was adjourned and finally he was examined in
chief in January, 2003; that during the course of examination, the Public Prosecutor put certain questions, as if he stated earlier, which he denied
and thereafter the Public Prosecutor treated him hostile and sought permission to cross-examine him and the Court granted leave.
The petitioner would further submit that during cross-examination, the Public Prosecutor showed a statement to him, said to have been recorded
on 24.1.1996 which is factually incorrect and no such statement was given by him on 24.1.1996 and this can be proved beyond doubt by records
in the form of police notice sent by the same investigating officer to him subsequently and therefore he deposed that the statement was not given by
him and denied the same; that the defence counsel also cross-examined him on 6.2.2003 and his evidence was closed on 6.2.2003 and the case is
adjourned for investigating officer''s evidence.
The petitioner would further submit that on 22.4.2003, he received summons from the Court of XI Metropolitan Magistrate to appear for cross-
examination on 2.5.203 and to give evidence; that on verification, it was found that the said Mohan, on whose complaint, the case was registered,
filed a petition to engage a Lawyer to assist the prosecution and filed Crl.M.P.No.539 of 2003 praying to reopen the investigation and direct the
Additional Deputy Commissioner of Police to investigate various aspects raised therein, seize the original power of attorney from P.W.2 and send
the same for handwriting expert for his opinion and to file additional charge sheet array this petitioner as accused and Crl.M.P.No.689 of 2003 to
recall this petitioner for cross-examination and the learned Magistrate, without notice to this petitioner, also conducted the enquiry and dismissed
the Crl.M.P.No.539 of 2003 and allowed the Crl.M.P.No.689 of 2003, by the order dated 1.4.2003.
The petitioner would further submit that the above petition is not maintainable and it is a clear abuse of process of law; that the above
applications are filed with a view to harass him by unnecessarily dragging on to criminal courts and thereby causing mental agony and forcing him to
come to terms; that he has not adduced evidence that he is possessed of original power of attorney; that the charge itself is baseless since the very
case is that the power of attorney is forged and without the original power of attorney, the alleged forged document, the charges were framed and
now he is compelled to produce a document which is not in his custody and depose evidence on the basis of the statement which is not given by
him; that after the evidence is over and that too, when the prosecution has treated him as hostile witness, he is unable to understand as to what sort
of evidence, the prosecution is expecting from him as their witness; that there is no scope for further cross-examination according to the sweet wish
of the Public Prosecutor and hence the petition is filed by the counsel assisting the Public Prosecutor just to harass him by dragging him to criminal
courts and made him wait by way of sadist satisfaction. On such grounds, the petitioner would pray for the relief extracted supra.
During arguments, the learned counsel appearing on behalf of the petitioner would only repeat the facts and circumstances brought forth in his
application with no new fact or circumstance nor any law pertaining to the subject argued and hence tracing the same is not only going to be a
repetition of the facts extracted supra but also will be a time consuming and wasteful exercise.
Though no petition has been filed to implead the defacto-complainant as the party to the above proceedings, Mr. T.L.L. Ramakrishnan,
Advocate appeared on behalf of the defacto-complainant as intervener and resisted the above petition stating that the property of the defacto-
complainant is sold by forging the documents and hence he has to get it ascertained as to with whom the original power of attorney is and hence he
has filed a petition before the Court below u/s 311 Cr.P.C. and the same was allowed by the Court below in full consideration of the facts and
circumstances of the case and the above petition filed by P.W.2 is without merit and would pray to dismiss the above criminal original petition.
On the part of the learned Government Advocate on the criminal appearing for the prosecution, he would affirm the order of the Court below
and would pray to dismiss the above criminal original petition.
In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for all parties, it
could be assessed that the defacto-complainant in the case in hand has filed a petition before the trial Court u/s 311 of the Cr.P.C. to re-call
P.W.2 for further cross-examination by the prosecution towards establishing the possession of the original power of attorney said to have been
parted with by one Maragathamani, the accused therein. The case of the defacto-complainant is that the accused Maragatha Mani, who is none
other than his sister''s daughter, while selling her lands in favour of the petitioner herein, who is a builder to an extent of 13,000 sq.ft., she has also
sold two cents of land belonging to the defacto-complainant, which according to the defacto-complainant was forging his signature in the
documents, which could be ascertained by causing production of the original power of attorney, which is said to have been given in favour of the
said Maragathamani and according to the defacto-complainant, the said Maragathamani has handed over the said power of attorney in original to
this petitioner/P.W.2.
P.W.1 is the defacto-complainant. According to the defacto-complainant, regarding the possession of the original power of attorney said to
have been given to this petitioner/P.W.2 by the accused Maragathamani, no proper evidence has been elicited by the prosecution at the time of
cross-examination of P.W.2 as a hostile witness. On the part of the petitioner/P.W.2, he would firmly deny not only before this Court but also
during the time of his examination before the trial Court regarding the original power of attorney being handed over with him by the said
Maragathamani and he has specifically mentioned not only in the chief-examination but also in his hostile evidence extracted by the APP in cross-
examination and there is no question of any ambiguity or inconsistency or doubtful circumstance created so far as the petitioner''s evidence before
the trial Court regarding the possession of the original power of attorney by him is concerned. Therefore, it is not proper on the part of the defacto-
complainant in seeking to re-examine P.W.2 since absolutely no purpose is going to be served by such examination of P.W.2 again since his
evidence regarding the subject in hand, even at the time of his original cross-examination, is definite.
It is relevant to point out that what statements have been recorded by the prosecution u/s 161 Cr.P.C. have been properly and elaborately
elicited in the cross-examination of the petitioner/P.W.2 and the hostile witness P.W.2 would deny them. Now citing some notice and reply
exchanged by parties and stating that in the said notice, it is indicated that the original power of attorney was parted only with this P.W.2, the
defacto-complainant has come forward to file the petition u/s 311 Cr.P.C. before the Court below.
At this juncture, it is essential on the part of this Court to go into the question `whether such an application could be filed on the part of the
defacto-complainant in his individual capacity, particularly in view of the fact that P.W.2 is not a party to the proceedings but only examined as a
witness'' and `whether it is proper on the part of the court below to have permitted the defacto-complainant to file the petition regardless of the fact
that the case of the prosecution is conducted by the State?''.
The petitioner may be the defacto-complainant, but it is entirely the State, which has taken up the responsibility of projecting the case of the
prosecution and anything the defacto-complainant wants to project before the Court, it should be only through the agency which is projecting his
case i.e. the State through the police and the Public Prosecutor and hence according to the procedures established by law particularly under
Cr.P.C., the defacto-complainant could only assist the prosecution, if permitted by the Court and he has absolutely no independent locus standi
either to file a petition excluding the Public Prosecutor who is prosecuting the case or would he have any say with the Court regarding anything that
he wants to bring home. Therefore, entertaining the petition filed by the defacto-complainant itself is irregular, no mention need be necessary in
processing the same and passing orders on such application filed by the defacto-complainant by himself and therefore it is only proper, in the
above circumstances, to hold that at the outset, entertaining the petition filed by the defacto-complainant herein before the trial Court in the manner
aforementioned u/s 311 Cr.P.C. itself is improper and not maintainable in law needless to mention about the fate of the enquiry held and the orders
passed by the Court below.
No irregularity or inconsistency has taken place in the manner that the subject matter has been dealt with by the APP at the time of the
examination of P.W.2, which is perfect and no inconsistency or irregularity writs large so as to entertain the application of such sort in the name of
re-examination which is out of the scope of the case projected and further since the application of that sort filed by the intervener/defacto-
complainant cannot be maintained, this Court, for these reasons, is left with no choice but to set aside the order passed by the Court below.
In result,
(i)the above criminal original petition is allowed.
(ii)The order dated 1.4.2003 made in Crl.M.P.No.689 of 2003 in C.C.No.1100 of 1999 by the Court of XI Metropolitan Magistrate, Saidapet,
Chennai is hereby set aside.
Consequently, Crl.M.P.Nos.4321 and 4322 of 2003 are also dismissed.