IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 Crl.MC.No. 3322 of 2011() ---------------------------------------- CMP. 1424/2011 IN CC.93/2010 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARADU CASES), KOZHIKODE .................... PETITIONER(S): ACCUSED --------------------------------------- A.K.LENEESH, S/O. VIJAYAN, ARAYAMKULANGARA HOUSE, IRUVALLUR P.O., CHELANNUR, KOZHIKODE DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT/STATE ------------------------------------------------------------ 1. SUB INSPECTOR OF POLICE, KASABA POLICE STATION, KOZHIKODE-673 121. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SPL. PUBLIC PROSECUTOR SMT.T.SHAJITH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss CRMC. NO.3322/2011 APPENDIX PETITIONER(S) ANNEXURES ANNEXURE I : TRUE COPY OF THE PETITION FILED BY THE SPECIAL PROSECUTOR IN THE CASE FILED CMP 1424 B/11. ANNEXURE II: COPY OF THE PETITION FILED BY THE SPECIAL PROSECUTOR AS CMP 1424.C/2011 DTD.18.7.2011. ANNEXURE III: COPY OF THE PETITION IN CMP 1424/A/11 DTD.22.7.2011. ANNEXURE IV(a): TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER ON 12.7.2011. ANNEXURE IV(b): TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER ON 12.7.2011. ANNEXURE IV(c): TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER ON 12.7.2011. ANNEXURE V : COPY OF THE PETITION FILED BY THE PETITIONER ON 8.8.2011 U/S. 309 OF CR.PC. ANNEXURE VI: COPY OF THE ORDER IN CRL.M.C.2629/11 OF THIS HON'BLE COURT. ANNEXURE VII: COPY OF THE ORDER PASSED IN CMP 1424 A/11 OF SPECIAL JUDICIAL 1ST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE. ANNEXURE VIII: COPY OF THE ORDER PASSED IN CMP 1424 B/11 OF SPECIAL JUDICIAL 1ST CLASS MAGISTRATE(MARAD CASES), KOZHIKODE. ANNEXURE IX : COPY OF THE ORDER PASSED IN CMP 1424 C/11 OF SPECIAL JUDICIAL 1ST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3322 of 2011 ----------------------------------- Dated this the 19th day of October 2011 O R D E R This petition is filed by the accused challenging Annexure Nos.VII, VIII and IX orders passed by the learned Magistrate. In the course of cross examination objections were raised about the marking of Ext.P12 and it was also contended that PW1 was not competent to mark that document as he was not the Manager of Chemmannur Jewellery. It was also contended that there were some writings found on the left hand portion of the particular sheet/page of Ext.P12. It was not readable. To convince the court that there was no manipulation in the original, subsequently Ext.P27 was produced. The learned counsel for the respondent/ complainant submits that it was marked through PW14. It is stated that PW14 was cross examined by the learned counsel for the accused. The objection raised by Crl.M.C. No.3322 of 2011 -: 2 :- the learned counsel for the petitioner is that recalling of the witnesses would cause serious prejudice to the accused because it was filling up the lacuna. The learned Magistrate has also stated that the documents sought to be marked were not seized by the Investigating Agency but it cannot be said that by allowing the petition the prosecution is allowed to fill up the lacuna. The learned Magistrate has also observed paragraph 5 of Annexure IX order, which reads : “ Even then, in the interest of justice and for the just decision of the case the prayer can be allowed. It will be open to the accused to raise objection if he find that documents is not admissible in evidence or marking of the same is not proper, at the time when the documents being tendered to be marked. It is, therefore, I am of the view that no prejudice will be caused to the accused if the petition is allowed. Hence this petition is allowed.” Probative value of the documents produced by the prosecution has to be analysed and appreciated after the evidence is over. The request made by the prosecution is to recall PW1 to mark three documents; first one is the 2nd volume of day book of the year 2001-2002; second is the Crl.M.C. No.3322 of 2011 -: 3 :- rental agreement to show that PW1 is the proprietor of that jewellery and the third one is the certificate issued from the tax office to prove that he is the proprietor of the jewellery. The learned counsel for the accused would submit that these documents were not seized by the Investigating Agency and by producing those documents at the last stage, it will cause prejudice to the accused. 2. This submission is resisted by the learned counsel for the respondent pointing out that the relevant documents were already produced but the aforesaid documents are required only to clarify a certain point. After all, the endeavour of the court is to find the truth without causing prejudice to the accused. Whether any prejudice was caused to the defence by recalling PW1 and by marking those documents at a later stage will be considered by the learned Magistrate at the time of disposal of the case. On going through Annexure Nos.VII to IX orders, I find that the learned Magistrate has cautiously taken cognizance of the necessity of Crl.M.C. No.3322 of 2011 -: 4 :- recalling of the witnesses and the production of those documents. The invocation of power under Sec.311 Cr.P.C. is only to advance the cause of justice. I do not find that the learned Magistrate has exceeded his jurisdiction in invoking the power under Sec.311 Cr.P.C. The accused can raise all further contentions at the time of argument. This Crl.M.C. is dismissed as above. N.K.BALAKRISHNAN, JUDGE. Jvt