Kerala High Court
Accused No vs State Of Kerala on 2 March, 2013
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935
Crl.M.C.No. 1204 of 2013 ()
---------------------------
CC. 778/2007 of J.M.F.C.-I, PATHANAMTHITTA
CRIME NO.327/2007 OF ARANMULA POLICE STATION, PATHANAMTHITTA
PETITIONER(S):ACCUSED NO.1
----------------------------------
KOSHI.P. CHERIYAN
PLANKOOTTATHIL HOUSE, MALLAPUZHASSERY
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
RESPONDENT/COMPLAINANT(S):
------------------------------
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKUALM-682031
BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-03-2013,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.1204/13
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE A:COPY OF CMP NO.2999/07 BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE-I, PATHANAMTHITTA.
ANNEXURE B:COPY OF FINAL REPORT IN CRIME NO.327 OF 2007 OF ARANMULA
POLICE STATION.
ANNEXURE C:TRUE COPY OF WITNESS LIST DATED 2.3.2013 SUBMITTED BY
ACCUSED IN C.C.778/2007 BEFORE THE COURT OF THE JFCM-I,
PATHANAMTHITTA.
ANNEXURE D:CERTIFIED COPY OF ORDER DATED 2.3.2013 IN CRL.M.P.NO.1608 IN
C.C.NO.778/2007 BEFORE THE COURT OF JFCM-I, PATHANAMTHITTA.
RESPONDENT'S EXHIBITS:NIL
//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR, J.
==========================
CRL.M.C. No.1204 OF 2013
==========================
Dated this the 25th day of March, 2013
ORDER
The petitioner is the accused in C.C.No.778 of 2007 pending on the files of the Court of Judicial First Class Magistrate-I, Pathanamthitta arising from crime No.327 of 2007 of Aranmula Police Station. The said crime was registered against the petitioner and his co-accused alleging commission of offences under sections 291, 427, 286 and 506(ii) of the Indian Penal Code. The gist of the allegations against the petitioner and his co-accused is that they conducted unauthorised quarrying operations in the quarry in question from 20.2.2007 onwards and caused damage to the defacto complainant-State in violation of the temporary injunction passed by the Court of Munsiff, Pathanamthitta in O.S.No.212 of 2007. Obviously, the prosecution evidence is over and thereafter, the petitioner was questioned under section 313 Cr.P.C. Subsequently, Crl.M.C.1204/13 2 the petitioner was called upon to enter his defence. Thereupon, he filed Annexure-C witness list and sought for issuance of summons to the Tahsildar, Kozhencherry whose office is situated at Mini Civil Station, Pathanamthitta. Crl.M.P.No.1608 of 2013 carrying the said prayer was rejected by the Court of Judicial First Class Magistrate-I, Pathanamthitta as per Annexure-D order. This petition is filed in the said circumstances challenging Annexure-D order.
2. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor.
3. The petitioner has produced a copy of Crl.M.P.No.1608 of 2013 filed in C.C.No.778 of 2007 as Annexure-C which would reveal that the prayer for summoning the aforesaid witness was made for the purpose of his examination as also for production of the documents in terms of Annexure-C. In Annexure-D order, the learned Magistrate observed that the documents sought to be summoned could have been Crl.M.C.1204/13 3 objected (sic. obtained) by approaching the public office by application. Evidently, the said petition was dismissed for the reason that the petitioner had not exhausted the said course open to him. Two aspects have to be looked into in this contest. Annexure-C would reveal that the petitioner sought for issuance of summons to the Tahsildar, Kozhencherry for the purpose of his examination as also for the production of the documents specifically requested for production as per Annexure-C. There is no finding with respect to the aspect as to whether the prayer for examining the said witness could be allowed or not. The only observation is to the effect that the documents sought to be summoned could have been obtained by approaching the public office by application. Even if the petitioner approaches the competent authority and obtain such documents whether without legally bringing them into evidence they could be relied on, is also a matter to be looked into. Such questions were not seen considered while passing Annexure-D order. In the said circumstances, this Crl.M.C is allowed. Annexure-D order passed by Crl.M.C.1204/13 4 the Court of Judicial First Class Magistrate-I, Pathanamthitta in Crl.M.P.No.1608 of 2013 in C.C.No.778 of 2007 is set aside. The learned Magistrate shall restore the said petition into file and consider it afresh taking into account the prayers made in Annexure-C, in accordance with the provisions under the Code of Criminal Procedure and Evidence Act and also by looking into the observations made in this order.
C.T. RAVIKUMAR
(JUDGE)
spc/
Crl.M.C.1204/13 5
C.T. RAVIKUMAR, J.
JUDGMENT
September, 2010
Crl.M.C.1204/13 6