Deepak Raj, Raju and Usha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 3RD DAY OF MAY 2016/13TH VAISAKHA, 1938** ## **Crl.MC.No. 2694 of 2016 ()** ## **--------------------------CMP. NO.1856/2016 IN CC. NO.46/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKKARA.** **.........** ## **PETITIONERS/ACCUSED NO.1 TO 3:** ## **----------------------------------------------------** **1. DEEPAK RAJ, AGED 27 YEARS, S/O. RAJU, KAYALIKKUDI USHAS VEEDU, NEAR DOCTOR JUNCTION, POOTHAKKULAM MURI, POOTHAKKULAM VILLAGE, KOLLAM DISTRICT.** **2. RAJU, AGED 60 YEARS,** - **S/O. SIVANANDAN, KAYALIKKUDI USHAS VEEDU, NEAR DOCTOR JUNCTION, POOTHAKKULAM MURI, POOTHAKKULAM VILLAGE, KOLLAM DISTRICT.** **3. USHA, AGED 52 YEARS,** - **W/O. RAJU, KAYALIKKUDI USHAS VEEDU, NEAR DOCTOR JUNCTION, POOTHAKKULAM MURI, POOTHAKKULAM VILLAGE, KOLLAM DISTRICT.** **BY ADVS.SRI.C.R.VIJAYAKUMARAN PILLAI, SRI.R.SANTHOSH (VARKALA), SMT.S.V.HARITHA.** ## **RESPONDENT(S):** **-------------------------** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MAVELIKKARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.LILLY LESSLY.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 2694 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE 1 COPY OF THE ORDER DATED 28/04/2016 IN CMP. NO.1856/2016 IN C.C. NO.46/2011 ON THE FILES OF THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT, MAVELIKKARA.** ## **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN V., J.** =========================================== **Crl.M.C. No. 2694 of 2016** ===================================================== **Dated this the 3[rd] day of May, 2016** ## **ORDER** - 1.The petitioners are accused Nos. 1 to 3 in CC No. 46 of 2011 on the file of Judicial First Class Magistrate CourtI _,_ Mavelikara. They are alleged to have committed the offences punishable under Sections 420, 498A read with Section 34 of Indian Penal Code. - 2.Trial had commenced and on 26.04.2016, case stood posted for examination of the Investigating Officer. Misfortune struck the the learned counsel who appeared for the petitioners. He being a resident of Paravoor, sustained serious internal injuries consequent to the horrendous incident at the Puttingal temple, Paravoor. He was admitted in the KIMS Hospital at Thiruvanthapuram, and was in a Coma stage. The junior counsel who was representing the accused sought for -2- Crl.M.C. No. 2694 of 2016 time to cross examine the witness. The learned magistrate rejected the prayer. The evidence was closed and the case was posted for questioning the accused under section 313 of the Code. 3.Immediately thereafter, an application under Section 311 of Cr.P.C was preferred by the petitioners with a prayer to recall the witness and to afford them an opportunity to cross examine him.The said application was rejected the learned Magistrate. Annexure A1 is the order. The learned Magistrate referring to directions issued by the superior Courts has concluded that trial has to be conducted on a day to day basis and the reason stated in the application did not satisfy the mandate. - 4.Heard the learned counsel appearing for the petitioner -3- Crl.M.C. No. 2694 of 2016 as also the learned Public Prosecutor. 5.The learned counsel would assert that the counsel who had appeared for the accused and had conducted the trial was in a Coma stage. According to the learned counsel, prejudice of an irreparable variety would be caused, if Annexure 1 order is not set aside. An opportunity be granted to the petitioners to test the evidence of the witnesses to put relevant facts in cross examination, is the prayer of the learned counsel. It is further submitted that the petitioners require to prove several omissions and contradictions through the Investigating officer and intervention by this court is warranted. 6.As held by the Apex Court in **AG v. Shiv Kumar Yadav and Another (AIR 2015 SC 3501)** , _the trial court_ -4- Crl.M.C. No. 2694 of 2016 _should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results._ 7. The absence of the lawyer who was appearing for the accused was owing to an unforeseen situation and the learned Magistrate ought to have allowed the prayer of the accused and should have afforded them an opportunity to cross examine the Investigating Officer. I also find merit in the submission of the learned -5- Crl.M.C. No. 2694 of 2016 counsel that the petitioners will be greatly prejudiced if they are not afforded an opportunity to cross examine the Investigating Officer . As held by the Apex Court in **Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT) Delhi (AIR 2012 SC 750)** the fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, to arrive at the truth, its veracity should be judged and for that purpose cross - examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination - in - chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected. 8.In view of the above, Annexure 1 order cannot be sustained. The same is set aside. The learned Magistrate is directed to recall the witness and afford all reasonable opportunity to the petitioners to cross -6- Crl.M.C. No. 2694 of 2016 examine him. The petition is disposed of as above. Sd/- **RAJA VIJAYARAGHAVAN V. JUDGE** das /03.05.2016