IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 Crl.MC.No. 2274 of 2009() ----------------------------------- AGAINST THE ORDER DATED 01/07/2009 IN CMP. 1110/2009 IN CC.344/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PEERUMEDU .................... PETITIONER/ACCUSED 1 TO 6 -------------------------------------------- 1. RAJENDRAPRASAD, MANAGER, TYFORD ESTATE, ELAPPARA VILLAGE. 2. SOUNDER RAJAN, ASSISTANT MANAGER, TYFORD ESTATE, ELAPPARA VILLAGE. 3. PERIYASWAMI, S/O.SHANMUKHAM, FAIRFIELD DIVISION, LAYAM, TYFORD ESTATE, ELAPPARA VILLAGE. 4. RAJU @ YOYANNAN, S/O.THOMAS, PAYYAPALLI VEEDU, FAIRFIELD DIV., PUTHUVAL, TYFORD ESTATE, ELAPPARA VILLAGE. 5. SUBBAYYA, S/O.MASANAM, FAIRFIELD DIV. LINE, TYFORD ESTATE, ELAPPARA VILLAGE. 6. PHILIP, S/O.SUBBAYYA, FAIRFIELD DIV. LINE, TYFORD ESTATE, ELAPPARA VILLAGE. BY ADV. MR.T.A.UNNIKRISHNAN, MR.P.P.BIJU, MR.NITHIN JACOB. RESPONDENTS/COMPLAINANT --------------------------------------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SARASAMMA, W/O.THAMPY, GURUMANDIRAM VEEDU, ELAPPARA KARA, ELAPPARA VILLAGE. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR R2 BY ADV. MR.BIJU .C. ABRAHAM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/03/2010, ALONG WITH CRMC NO. 3863 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.Nos.2274 and 3863 of 2009 -------------------------- COMMON ORDER Petitioners are the accused in C.C.No.344/2005 on the file of Judicial First Class Magistrate's Court-I, Peerumedu. They filed C.M.P.No.1110/2009 under Section 311 of Code of Criminal Procedure to recall and cross- examine PWs 2 and 5 and DW5. By order dated 1.7.2009 learned Magistrate dismissed that petition. Crl.M.C.No. 2274/2009 is filed challenging that order. Petitioners filed C.M.P.No.3509/2009 thereafter to mark certified copies of depositions of PWs 2, 5 and DW5 in the police case invoking the power under Section 247 of Code of Criminal Procedure. By order dated 14.10.2009, that petition was also dismissed. Crl.M.C.No.3863/2009 is filed to quash that order. 2. Learned counsel appearing for the petitioners and second respondent/complainant were heard. 3. Argument of the learned counsel appearing for the petitioners is that this Court had permitted petitioners to confront previous statements of the CRMC 2274&3863/09 2 prosecution witnesses, but, when PWs 2 and 5 were cross-examined and DW5 was examined, junior counsel was attending the court and so, relevant statements could not be confronted and therefore, in the interest of justice, learned Magistrate should have allowed C.M.P.No.1110/2009. Learned counsel also pointed out that as that petition was dismissed, petitioners were compelled to produce copies of depositions of the witnesses in the police case and learned Magistrate was not justified in refusing to mark certified copies of depositions of the witnesses and hence, the respective orders are to be quashed and petitioners are to be permitted to recall PWs 2 and 5 and DW5 as sought for. 4. Learned counsel appearing for the second respondent submitted that there is absolutely no justification either in recalling the witnesses or in producing copies of depositions of the witnesses in another case and in such circumstances, the petitions are only to be dismissed. 5. The grievance of the petitioners could have been appreciated, if PWs 2 and 5 and DW5 were examined before this court permitted petitioners to confront the CRMC 2274&3863/09 3 witnesses with their previous statements. That is not the case. Admittedly, PWs 2 and 5 were cross-examined and DW5 was examined subsequent to the order passed by this Court permitting petitioners to confront the witnesses with their previous statements. The prayer in C.M.P.No.1110/2009 is to confront PWs 2 and 5 and DW5 with their statements recorded under Section 161 of Code of Criminal Procedure. That statements can only be proved through the Investigating Officer, after those statements are confronted earlier. Without proving the statements, they cannot be confronted at this stage by recalling PWs 2 and 5 and DW5, as the Investigating Officer, who recorded those statements, is not sought to be examined. In such circumstances, I find no reason to interfere with the order of dismissal of C.M.P.No. 1110/2009. 6. When certified copies of depositions of PWs 2 and 5 and DW5 in C.C.No.344/2005 are not admissible in this case, as they are not substantive evidence, only that part of the statements which were confronted to the respective witnesses could have been relied on, if proved and petitioners were not permitted to recall PWs CRMC 2274&3863/09 4 2 and 5 and DW5, their depositions in another case cannot be marked as sought for. In such circumstances, I find no reason to interfere with the order of dismissal of C.M.P.No.3509/2009 also. Petitions are dismissed. Petitioners are at liberty to challenge these orders along with the final order, if it goes against them. 16th March, 2010 (M.Sasidharan Nambiar, Judge) tkv