(Prayer: Criminal Original Petition filed under Section 528 of Bharathiya Nagarik Suraksha Sanhita, 2023 to call for the records pertaining to the impugned order passed in Crl.M.P.No.2127 of 2024 in C.C.No.140 of 2016 on the file of the learned Judicial Magistrate, Tenkasi dated 14.03.2024 and set aside the same and to recall the witness P.W.7 for the purpose of cross examination.)

1. Seeking to set aside the order dated 14.03.2024 passed by the learned Judicial Magistrate, Tenkasi, in Crl.M.P.No.2127 of 2024 in C.C. No. 140 of 2016, the present Criminal Original Petition has been filed.

2. The petitioner filed a petition in Crl.M.P. No. 2127 of 2024 under Section 311 of the Code of Criminal Procedure, 1973, seeking to recall P.W.7, the Investigating Officer, for cross-examination, which came to be dismissed. Challenging the same, the present Criminal Original Petition has been filed.

3. Mr.R.J.Karthick, the learned counsel for the petitioner, submits that P.W.7, the Investigating Officer, was examined in chief on 12.03.2024; that the earlier advocate on record relinquished his vakalat, and the present advocate filed a change of vakalat and sought a short date for cross-examination; that however, the Trial Court rejected the same; that since the examination of the Investigating Officer is very important for the purpose of substantiating the petitioner’s case, Crl.M.P.No.2127 of 2024 was filed under Section 311 of the Code of Criminal Procedure, 1973, on 14.03.2024, i.e., within two days, seeking to recall P.W.7 for cross-examination; that however, the learned Judicial Magistrate, without considering that there was no delay on the part of the petitioner and that sufficient efforts had been taken to recall the said witness immediately, dismissed the petition on the ground that the Investigating Officer had been transferred to another department, namely, the National Investigation Agency (NIA), Chennai. Hence, he seeks the indulgence of this Court to set aside the same.

4. Mr.S.Ravi, the learned Additional Public Prosecutor for the respondent, vehemently submits that a change of vakalat cannot be a ground for seeking adjournment when the Investigating Officer had appeared for cross-examination and that he has since been transferred to the National Investigation Agency (NIA), Chennai, on deputation. He further submits that, as the Investigating Officer has been transferred to Chennai, it would now be difficult for him to travel all the way from Chennai, and therefore prays for dismissal of this Criminal Original Petition.

5. Heard the learned counsel on either side and carefully perused the materials available on record.

6. Though the petitioner ought to have cross-examined P.W.7, the Investigating Officer, on the same day when he appeared for crossexamination, considering the fact that there was no delay on the part of the petitioner in filing the petition under Section 311 of the Code of Criminal Procedure, 1973, within two days, to recall the said witness for the purpose of cross-examination, which shows the petitioner’s interest in substantiating his case, this Court is of the view that one more opportunity may be granted to the petitioner to cross-examine P.W.7, the Investigating Officer. However, the petitioner shall bear the cost of travel of P.W.7, the Investigating Officer, from Chennai, even if it involves air travel. The learned Judicial Magistrate is directed to permit the petitioner to crossexamine P.W.7, the Investigating Officer, by fixing a date upon payment of witness batta.

7. Accordingly, this Criminal Original Petition is allowed. Consequently, the connected Miscellaneous Petition is closed.