Kerala High Court
(Against Annexure -3 Order In Cmp ... vs By Advs.Sri.Praveen K. Joy on 22 November, 2016
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938
Crl.MC.No. 8043 of 2016 ()
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(AGAINST ANNEXURE -3 ORDER IN CMP 2977/16 IN CC 77/13 OF CHIEF
JUDICIAL MAGISTRAE COURT AT ALAPUZHA)
PETITIONER(S)/RESPONDNET IN CMP 2977/16 IN CC 77/13 OF CJM,
ALAPPUZHA:
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ANITHALAL,
AGED 48, W/O. LAL, PULICHUVATTIL,
KOMALAPURAM, AVALOOKKUNNU P.O.,
ALAPPUZHA.
BY ADVS.SRI.PRAVEEN K. JOY
SRI.T.A.JOY
RESPONDENT(S)/STATE/COMPLAINANT:
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1. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
REPRESENTING SI OF POLICE,
ALAPPUZHA NORTH.
2. R.ANILKUMAR
AGED 48, S/O. RAGHAVAN, ADITHYA,
MULLAKKAL, ALAPPUZHA - 688 001.
R BY PUBLIC PROSECUTOR E.C.BINEESH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 8043 of 2016 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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A1 THE TRUE PHOTOCOPY OF THE PETITION IN CMP 2977/16 IN
CC 77/13 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT AT ALAPUZHA.
A2 THE TRUE PHOTOCOPY OF THE OBJECTION IM CMP 2977/16 IN
CC 77/13 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT AT ALAPUZHA.
A3 THE TRUE PHOTOCOPY OF THE IMPUGNED ORDER IN CMP
2977/167 IN CC 77/13 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT
AT ALAPUZHA.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/ PS TO JUDGE.
SUNIL THOMAS, J.
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Crl.M.C.No. 8043 of 2016
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Dated this the 22nd day of November, 2016
O R D E R
The accused challenges the order in CMP No.2977/2016 in CC No.77/2013 of the Chief Judicial Magistrate Court, Alappuzha, by which the complainant's application to recall two witnesses under Section 311 of Cr.P.C. was allowed .
2. Admittedly, the evidence was over, the matter was heard and taken for judgment. Even as per the available materials, there were several postings for judgment. In the meanwhile, the present application was filed to summon the witnesses Nos. 1 and 5 in the list of witness. It was allowed by the court below on terms by a cryptic order holding that the examination of the witness is essential for the just decision of the case.
3. The contention of the learned counsel for the petitioner herein is that, the matter was heard elaborately and that, though these two witnesses were mentioned in the initial list of witnesses, they were given up or abandoned at the time of trial. Much later, those witnesses have been summoned to fill up the lacuna created by the examination of the complainant and other witnesses.
4. A perusal of Annexure-1 application itself shows that, it was posted for further hearing and the first witness mentioned in Cr.M.C.No.2043/2016 2 the list of witnesses was out of station and by an inadvertent mistake, the fifth witness, the branch manager, could not be examined. It is true that the application was highly belated. It is also further true that after having mentioned their names even at the initial stage, virtually they were given up by the complainant. Still, in exercise of the limited discretion conferred under Section 311 of Cr.P.C., the court , being satisfied that the examination of the witness was essential to the just decision, applying the principle that normally evidence shall not be shut out, allowed the application. There is nothing on record to show that any prejudice will be caused to the petitioner, except the delay which is also equally applicable to the complainant. Having regard to the above, I am not inclined to invoke the jurisdiction of this Court under Section 482 of Crl.P.C. to interfere with the impugned order.
Accordingly, Crl.M.C fails. However, it is made clear that the court shall ensure that the case is not delayed, that the complainant takes effective steps to summon the witness and examine the witness on the same day of their appearance itself.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.
Cr.M.C.No.2043/2016 3