SUDHAKARAN VALLITHUNDIL VEEDU v. STATE OF KERALA

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943 CRL.MC NO. 7501 OF 2016 [AGAINST THE ORDER DATED 6.10.2016 PASSED IN CMP NO.926/2016 IN C.C.NO.874/2008 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA] ## PETITIONER/S: SUDHAKARAN VALLITHUNDIL VEEDU, EDAKKADU MURI, PORUVAZHI VILLAGE, SASTHAMKOTTA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN ## RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA-682031. 2 STATION HOUSE OFFICER SOORANADU POLICE STATION, SASTHANKOTTA-690521. ADV. ARAVIND V. MATHEW, PP FOR R1 AND R2 THIS CRIMINAL MISC. CASE HAVING BEING FINALLY HEARD ON 07.12.2021, THE COURT ON 4.1.2022 PASSED THE FOLLOWING: Crl.M.C No.7501 of 2016 2 ## O R D E R The petitioner is the accused in C.C.No.874/2008 on the file of the Judicial Magistrate of First Class, Sasthamkotta, which arises from Crime No.225/2008 of Sooranadu Police Station. This Crl.MC is filed challenging Annexure-4 order passed by the learned Magistrate, allowing an application submitted by the prosecution under Section 311 of the Code of Criminal Procedure (Cr.PC), to re-open the evidence and recall the witnesses. 2. The facts leading to the aforesaid dispute is as follows: The case was registered for the offences punishable under Sections 294(b) and 324 of the Indian Penal Code (IPC). The allegation is that on 23.5.2008 at 9.30 a.m., the petitioner/accused abused the defacto complainant with filthy words and caused injury on the left side of his head and left elbow using a spade. Based on the same, the Crime was registered and later, upon completing the Crl.M.C No.7501 of 2016 3 investigation thereon, Annexure-1 final report was submitted. In the said final report, the prosecution has cited seven witnesses. Out of which, only CW1 to CW3 were examined. Even though prosecution has taken steps to ensure the appearance of the other witnesses, they did not appear despite coercive measures. Accordingly, the prosecution evidence was closed on 15.5.2015. Thereafter, on 24.9.2016, prosecution submitted Annexure-2 petition praying for re-opening the evidence and to re-call CWs.4 to 7. It was stated in Annexure-2 petition that, the examination of the aforesaid witnesses is very much material and absolutely necessary for the prosecution. The petitioner filed Annexure-3 objection. But discarding those objections Annexure- 4 order was passed by the learned Magistrate allowing Annexure-2 petition. This Crl.M.C. is filed in the above circumstances. 3. Heard Sri. A.R.Dileep the learned counsel for the petitioner and Sri. Aravind V.Mathew, the Crl.M.C No.7501 of 2016 4 learned Public Prosecutor for 1[st] and 2[nd] respondents. 4. The learned counsel for the petitioner contends that the prosecution failed to produce the witnesses despite the fact that the said case was posted for appearance of the said witnesses on eleven occasions. It was also pointed out that the application for re-examination of the witnesses was filed much belatedly after closure of the prosecution evidence. It was also his contention that, Annexure-2 petition does not contain any reasons why they could not produce the witnesses earlier, and the delay caused in examination of those witnesses and completing the trial resulted in great prejudice to him. In such circumstances, he seeks for an order setting aside Annexure-4 order passed by the learned Magistrate. He also relies on the judgments reported in State (NCT of Delhi) v. Shiv Kumar Yadav & Anr.[(2016)2 SCC 402] and another judgment rendered by the Jharkhand High Court in ## Crl.M.C No.7501 of 2016 5 Ravi Bhushan Dubey and Anr. v. State of Jharkhand and Another [2006 CriLJ 2507]. 5. On the other hand, the learned Public Prosecutor seriously opposes the said prayer. It was pointed out that, the prosecution has taken all possible steps from their end, to secure the presence of the aforesaid witnesses. However, the said witnesses could not be examined on account of their non-cooperation. The aforesaid witnesses are very crucial and non-examination of the said witnesses would cause prejudice to the prosecution. In such circumstances, the dismissal of the Crl.MC was sought for. 6. The only question that arises for consideration is whether Annexure-4 order passed by the learned Magistrate is proper or not. Section 311 of the Cr.PC empowers the Magistrate to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined if his evidence appears to to be essential to the just Crl.M.C No.7501 of 2016 6 decision of the case. CWs. 4 to 7, who are sought to be examined by virtue of Annexure-4 order, are concerned, all of them are witnesses cited by the prosecution in the final report itself. As of now, only three witnesses could be examined and the evidences of the remaining witnesses are crucial to the prosecution. The only contention put forward by the learned counsel for the petitioner is regarding the prejudice caused to him on account of the delay in completing the trial. In support of his contention, the learned counsel relies on the judgment in State (NCT of Delhi) v Shiv Kumar Yadav (supra). However, the aforesaid judgment was rendered by the Hon’ble Supreme Court in a case in which an application under Section 311 of the Cr.PC was submitted by the defence counsel on the ground that during the course of trial, the previous counsel who was originally appearing for the accused could not effectively cross-examine the witnesses on account of his incompetence. It is also evident that, in the said decision, the Hon’ble Supreme Crl.M.C No.7501 of 2016 7 Court was considering a case where, recalling of the witnesses already examined, was sought for. In this case, the factual circumstances are completely different. Here, despite taking all earnest efforts, the prosecution could not examine four witnesses due to non co-operation from the part of the said witnesses. In such circumstances, there is nothing precludes the prosecution to seek for a further opportunity to examine the said witnesses particularly because those witnesses are material to the prosecution case. 7. Another decision relied on by the learned counsel for the petitioner is rendered by the Honurable Jharakand High Court, in Ravi Bhushan Dubey (supra) . In that case, the Hon’ble Court found that there were serious lapses on the part of the prosecution in not examining the witnesses earlier. In this case, the materials indicate that, the prosecution has taken all efforts to ensure the presence of the said witnesses, but yet it did not Crl.M.C No.7501 of 2016 8 materialize, due to the non-cooperation on the part of the witnesses. 8. In this case, as mentioned above, only three witnesses could be examined in support of the prosecution. If a further opportunity is not granted to the prosecution for examining the other witnesses who are crucial to the prosecution evidently serious prejudice will be caused to the prosecution. It is true that, speedy trial is a right of the accused. However, while considering the said question, a fair and proper trial is also to be ensured. 9. In the facts and circumstances of the case, I am convinced that in order to ensure proper and fair trial, examination of the aforesaid witnesses are necessary. At this juncture, it is also a relevant factor to note that the prosecution is not seeking to examine any new witness. All the witnesses sought to be examined are already cited as witnesses in the final report itself. Therefore, no prejudice would cause to the petitioner herein as he was having sufficient notice with regard to the Crl.M.C No.7501 of 2016 9 examination of the said witnesses and the purpose for which they are being examined. In such circumstances, I do not find any merit in this Crl.M.C. and it is dismissed by confirming Annexure-4 order passed by the Judicial First Class Magistrate Court, Sasthamkotta on 6.10.2016 in C.M.P.No.926/2016 in C.C.No.874/2008. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk Crl.M.C No.7501 of 2016 10 ## APPENDIX OF CRL.MC 7501/2016 PETITIONER ANNEXURE ANNEXURE I: TRUE COPY OF FINAL REPORT FILED THROUGH THE 2ND RESPONDENT. ANNEXURE 2: TRUE COPY OF CMP NO.926/16. ANNEXURE 3: TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN CMP NO.926/16. ANNEXURE 4: TRUE COPY OF ORDER DATED 6.10.2016 IN CMP 926/16.