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IN THE HIGH COURT OF JUDICATURE AT MADRAS

CRL.O.P. No:

OF 2016

Maruthapillai (76)
Son of Sangapillai,
11th Ward, Arur,
Namakkal Districit

Petitioner/Accused
Vs

State of Tamil Nadu


Represented by the Inspector of Police,
Mohanur Police Station,
Mohanur,
Namakkal

Respondent/Complainant

AFFIDAVIT OF THE PETITIONER

I, Maruthapillai, son of Sangapillai,

aged 76 years, permanent resident of 11 th

ward, Arur, Namakkal District, do hereby solemnly affirm and sincerely state as
follows :
1,

I am the Petitioner herein and the Accused in S.C No:27/2015 on the file of the

Fast Track Mahila Court , Namakkal

2.

I state that I am filing this petition before this Honorable Court praying for the

withdrawal of the case on the file of the Fast Track Mahila Court , Namakkal and for
transfer of the same to the file of any other Court of Competent jurisdiction. I state
that the learned trial judge is conducting my case in such a manner that I will not
obtain any fair or impartial trail from him for the reasons and explanations which are
elucidated as follows;
3.

I state that the Respondent police has filed a criminal case against me on

28.11.2009 in Cr.No: 489/2009 under section 376 (i) of Indian Penal Code. The
above case has been committed to the Fast Track Mahila Court , Namakkal and
numbered as S.C.No: 27 of 2015. The trial of the case has reached halfway so far.
In the above case, so for, as many as twelve prosecution witnesses i.e from PW-1
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-2to PW-12 have been examined in chief. Among them, PW-3 and PW12 have been
cross examined so far on my side.
4.

I state that I am a Senior Citizen, 76 years old, and the First Information

Report was filed against me on 28.09.2011. After a lapse of 5 long years, on


28.05.2015 only I was summoned to the Court. Since then, the case had been
posted for about 50 hearings so far and I have been appearing before the Court on
all the hearings without fail. On

27.08.2015, Witnesses PW-1 to PW-3 was

examined in Chief. Among the above said three witnesses PW-3 is the victim and
the prosecution claims her to be a deaf and dumb girl. On that day before even
starting the examination of witnesses, the then presiding officer of the Mahila Court
informed me that as 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.The said
C.K.Latha has no special or valid qualification to be a sign language interpreter and
she has close nexus with the police. So on my side it was represented and
requested befor the Mahila Court to ascertain her qualification to be an interpreter
in the Court of law. Since there were no documents given to me along with the
copies as to her qualification, the Interpreter C.K.Latha assured to the Court that
she would produce the certificates which are relevant to her qualification in the next
hearing of the case. Among the above said three witnesses, PW1 is the mother of
the victim and the de-facto complainant, PW2 is the brother of victim and the person
who claims to have first seen the victim after occurrence. 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 for me

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 the lacuna in the
deposition of each other. Therefore the witnesses were only examined in chief on
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-3-

that day and the case was adjourned to 12.09.2015 for further prosecution
witnesses.

5.

I state that before 27.08.2015, the date on which the witnesses PW 1 to PW3

were examined in chief, there were five more hearings posted in this case. I was
present on all five hearings. 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. But the interpreter was neither present before the Court nor did she
submit any certificate as assured. Hence, in the next hearing i.e. on 25.12.2015, I
filed a petition before the Court for recall of the witnesses PW-1 to PW-3, so as to
cross examine them and the same was allowed. On 05.01.2016, a process memo
was also filed along with process fee for summoning the witnesses PW-1 to PW-3.
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 turned to the witness
box. Thereafter, as the presiding officer of the Court was changed I could not
demand or make any representation to produce the certificates of interpreter as the
present presiding officer of the Makila Court is not aware about the oral assurance
of the interpreter made before the Court about production of her certificates.

6.

I state that therefore I filed a petition to ascertain the qualification of the

interpreter in a written petition as per law u/s. 119 of the Evidence Act on
04.04.2016 seeking to follow the guidelines made by this Honble High Court and
Apex Court in various occasions. I had also had prayed to strike out the deposition
of PW-3 made by her in examination in chief as the same was recorded in
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-4accordance with law. The petition filed by me was numbered as CMP 165 of 2016
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:
165 of 2016 filed by me was dismissed by the Makila Court. In the above said all
seventeen hearings i.e. from 12.09.2015 to 20.04.2016, I was continuously present
before the Court without fail. Despite

the representations made by the me , the

presiding officer of the Makila Court without affording any reasonable time to take
appropriate steps to file any appeal or revision against order of the Makila Court in
C.M.P.No: 165 of 2016 insisted me to pay process again to the summon the
witnesses PW-1 to PW-3. Only because of the insistence of the presiding officer I
paid process fee to summon PW-1 to PW-3 without any other go. Though I paid the
process fee as ordered by the presiding officer, I also had taken appropriate steps
to file appeal against the order of the Makila Court in above said CMP 165 of 2016
before this Honble Court.

Accordingly the appeal was filed before this Honble

Court in Crl OP No: 12767 of 2016.

7.

I state that within a week from the dismissal of the above said CMP

No.165/2016, on 27.05.2016, despite the representations made by me

about the

initiations taken for filing an appeal before this Honble Court the presiding officer
insisted me to cross examine the witness PW3 with the assistance of C.K.Latha the
so called interpreter. Therefore I filed a memo before the Makila Court stating the
above said facts and requested to adjourn the case to some other date. But the
presiding officer without considering the facts leveled in the said memo, returned
the same by stating as want of petition with CF to seek adjournment. The presiding
officer at no point of time considered about the hardships that would cause to me
in the event of admission of plea made by me in the appeal filed before this
Honble Court. On the contra the presiding officer recorded as though the witness
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were not cross examined even after sufficient opportunity


adjourned the case to 08.06.2016 for the examination

given to me

and

of further prosecution

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

for many hearings for the further prosecution witness of LW4 to

LW6. But on all those hearing no witnesses were present. On the other hand, I was
present on above said eight hearings without fail. As prayed by me in Crl OP No:
12767 of 2016 this Honble Court was pleased to direct the Makila Court to appoint
a qualified interpreter as per the law to assist for the cross examination of the PW3
on 21.06.2016.

8.

I state that 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 Court. On 18.08.2016 I was present, witness PW3 also
was present. While so one Mr.E.Yuvaraja a local Advocate was introduced by the
presiding officer as an interpreter, and directed me to cross examine the witness
PW3 with assistance of said local Advocate E.Yuvaraja. It was contented on my
side 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 On perusing the said circular of this
Honble Court in ROC No: 1729/2010/RR Dt 02.06.2010 my counsel represented
that the said circular order has two folds in the first fold this Honble 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
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-6language and not eligible to be an interpreter.

9.

I state that despite all representations and explanations made by me the

presiding officer again insisted me to cross examine the witness PW3 with the
assistance of above said Advocate Mr.E.Yuvaraja failing which the presiding officer
threatned that my bail would be cancelled. Therefore the I 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. Therefore I requested that so
as to enable me to question the interpreter about his qualification,he has to
administer oath. But the presiding officer rejected my request

stating that as said

Mr.E.Yuvaraja has not been cited in the witness list he could not put in to the
witness box therefore he cannot administer oath on him.

10. I state that therefore on my side, it was represented before the presiding
officer to permit me to file a petition with my contentions 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 presiding officer was pleased to grand
permission and asked me to file that petition at once. Hence my counsel prepared
the said petition in the open Court at once. But before submitting the petition the
presiding officer cancelled my bail and ordered to send me into judicial custody.
The

case was adjourned to 26.08.2016, from that date the case was again

adjourned to 30.08.2016 and on the day on the above Petition filed by me was
returned with remarks as follows
(i) If the interpreter summoned as per direction of Honble High Court is
alleged to be not qualified, how this petition can be maintained before this Court to
be stated

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-7(ii) how a person without putting into witness box can be sworned to be
stated.

11.

I state that in between, I preferred a bail petition before the Mahila Court and

the same was dismissed. Then I preferred a bail application Crl OP No: 21062 of
2016 before this Honble Court and the same also was dismissed with a direction to
appoint a qualified interpreter so as to assist for the cross examination of the PW3,
During that time a revision petition Crl RC No: 1130 of 2016 was also filed by me
before this Honble Court challenging the legality of the order of the Makila Court
passed on 18.08.2016 cancelling my bail. 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 my side those witnesses were not cross examined
because the witnesses PW1 to PW3 who were examined earlier to them were not
cross examined yet because of the reasons stated above. As detailed above PW1
is the complainant, PW2 is alleged to have first seen the 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 before the other witnesses. 12.

state that therefore I was not able to cross examine the further witnesses who were
examined later to PW1 to PW3. Further the revision petition filed by me was
pending for final hearing. Hence the date of hearing and disposal of the said
revision petition could not be determined in certain. But the presiding officer
proceeded the case further by examining the prosecution witnesses in row. All its
happened during my custody in jail which was more than 60 days at Salem central
jail. Upon considering the above said facts and left without any alternative, on
06.10.2011 on my side a memo was filed before the Makila Court by expressing my
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willingness to cross examine the witness PW3 as per the directions of this Honble
Court. By recording the memo filed by me on 06.10.2016, the Makila Court was
pleased to issue summon again to the above said C.K.Latha to 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, in all the above hearings neither


PW3 nor the interpreter were present. Meanwhile I have filed a petition u/s. 311 of
Cr.PC for recalling the witness of PW1 and PW2 so as to cross examine them along
with PW3 on the same day, as all three witness are material one and the statement
and deposition about the factual matrix would be interlinked. I also pleaded in that
petition that if the PW3 alone is cross examined then it would pave way to the
prosecution to use PW1 & PW2 to fill up the lacunas on the deposition of PW3. The
above said petition was numbered as CMP 523 of 2016 and dismissed on
21.10.2016. In the order of dismissal, the Makila Court did not discuss the said
facts on merit but has stated that there was no reason adduced by me for non-cross
examining the witness on that date.

13. I state that I cross examined PW3 on 24.10.2016 with the assistance of the
same interpreter C.K.Latha which is infact against the order passed by this Honble
Court. But since I was languishing in the jail I had to proceed. The above said
interpreter was examined as PW12 on 03.11.2016, and she was also cross
examined on the same date itself. At this juncture it was necessary to recall the rest
of witnesses to cross examine them in order to prove my case and to disprove the
case of the prosecution.

14. I state that on 11.11.2016, the Prosecution filed a counter for the 311 Petition
filed by me. On that day, on my side, junior advocate humbly requested the Makila
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Court, to adjourn the case since his senior has gone to outside place. But the
presiding officer told in vernacular Language as

and adjourned the case to 14.11.2016 for orders and dismissed the 311 petition. I
filed Revision petition against the order of the Makila Court in Crl OP No.25644 of
2016 and this Honble Court was pleased to dispose of the petition by permitting me
to cross examine certain witnesses. The copy of the order has been applied for and
I am yet to receive the same. While so the revision filed by me in Crl RC No: 1130
of 2016 was also allowed by this Honble Court setting aside the order of remand
with a direction to set me at large.

15. I state that on my side a petition was filed under section 309 Cr.PC to adjourn
the case till the

receiving of the above said order copy and the same was

numbered in CMP No:601/2016 but the same was dismissed by the Mahila Court.
It is therefore clear that on every stage the presiding officer had dealt my case with
much prejudice and on every occasion I had to approach the door steps of this
Honble Court to get justice. It is relevant to state that pending trial I was
unnecessarily confined in the prison for a long time until the remand order was set
aside. The king of impression expressed by the presiding officer in the open Court
also raises a considerable worry in my mind that I might not get a fair trial and a fair
judgment before the presiding officer in the Fast Track Mahila Court, Namakkal. I
cannot approach the Principal sessions Court Namakkal as my case is pending
before the Mahila Court and therefore only this Honble Court has jurisdiction to
decide the matter. Hence left with no other remedy I am approaching this Honble
Court.
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-10It is therefore prayed that this Honble Court may be pleased withdraw the
proceedings in S.C.No 27 of 2015 on the file of the Fast Track Mahila, Court,
Namakkal and transfer the same to any other Court of competent jurisdiction and
pass such further or other orders as this Honble Court may deem fit and proper in
the circumstances of the case and thus render justice.

Solemnly affirmed at
on this
the
day of December 2016 and the
contents of the affidavit having read and
explained to the petitioner in Tamil and the
petitioner having understood the same
signed his name/affixed his thumb impression
in my presence.

BEFORE ME

ADVOCATE
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