IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Crl.MC.No. 708 of 2010 -------------------------------- [M.P. NO. 160/2010 IN CC.NO.70/2003 OF JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR] .................... PETITIONER/ACCUSED: ---------------------------------- BABU, S/O.MARKOSE, KOTTAMKUNNEL HOUSE, THEKKULATHIL, VADAKKANCHERY, PALAKKADU. BY ADV. MR.M.B.PRAJITH. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.708 OF 2010 ------------------------------------------ Dated 1st March 2010 O R D E R Petitioner is the accused in C.C.70/2003 on the file of Judicial First Class Magistrate-III, Thrissur, taken cognizance for the offences under Sections 279, 337 and 304 A of Indian Penal Code. PW27 turned hostile to the prosecution and deposed that it was not he, who was managing the bus, but one Joy. Annexure-III copy of the deposition shows that after the witness was declared hostile, prosecutor sought time to examine the said Joy and witness was bound over. Annexure-IV petition was thereafter filed for permission to examine Joay as a witness. By Annexure-VI order, it was allowed. This petition is filed under Section 482 of Code Crmc 708/10 2 of Criminal Procedure to quash Annexure-VI order. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that statement of the witness sought to be examined by Annexure-IV petition, was not recorded under Section 161 of Code of Criminal Procedure. Learned counsel would also argue that evidence of PW27 was not closed and in such circumstances, learned Magistrate should not have permitted prosecution to examine an additional witness. 4. There is no law that prosecution cannot examine a witness, unless his Crmc 708/10 3 statement was recorded under Section 161 of Code of Criminal Procedure. If statement is recorded under Section 161 of Code of Criminal Procedure, accused is entitled to get a copy of the statement. When Joy was permitted to examined by Annexure-VI order. He was not earlier examined by Investigating Officer and his statement was not recorded. Hence there is no illegality in permitting the witness to be examined for the reasons disclosed in the statement of PW27. Though his statement was not recorded under Section 161 of Code of Criminal Procedure. Necessity of examination of the witness arose in the light of the evidence of PW27, who turned hostile. Though learned Magistrate has not expressly recorded, that it is just and Crmc 708/10 4 necessary evidently he felt that it is necessary to examine the witness and so, permission was granted. I find no illegality warranting interference. Petitioner is entitled to challenge the evidence by cross examining the witness. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.