IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRL.REF.No. 1 of 2009() ------------------------------------ CC.154/2006 OF CHIEF JUDICIAL MAGISTRATE,MANJERI .................... SUO MOTU ( RESPONDENT)(S): PARTIES ---------------------------- 1. STATE OF KERALA, 2. MUNDEKODE CHANDRAN, S/O. KRISHNAN, AMARAMBALAM AMSOM. 3. KAVUNGAL KRISHNAN. 4. VERUMPILAKKAL DIVAKARAN. 5. P.RAJAN, S/O. CHACKO, THELPARA, AMARAMBALAM AMSOM. BY PUBLIC PROSECUTOR MR. AMJAD ALI FOR R1 THIS CRIMINAL REFERENCE HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Cr.Reference No. 1 of 2009 ================== Dated this the 5th day of June, 2009. O R D E R The Criminal Reference was suomoto registered on the report submitted by Chief Judicial Magistrate, Manjeri. Chief Judicial Magistrate reported that C.C.No.130/1991 was taken cognizance against four accused and during trial, first accused absconded and the case as against him was split up and refiled as C.C.No.73/1995. Subsequently it was transferred to L.P. Register. When he surrendered, the case was taken on file as C.C.No.154/2006. It is pending before the Magistrate. Respondent is the said accused. Chief Judicial Magistrate reported that petitioner had absconded after recording of the prosecution evidence and the case was posted for questioning under Section 313 of Code of Criminal Procedure. The questions to be put to the petitioner was prepared and available in the case records. When presence of petitioner was procured he was questioned under Section 313 of Code of Criminal CR.R.No.1/2009 -2- Procedure with the questions prepared earlier. It was pointed out that subsequently it was found out that after disposal of the case as against the other accused, the depositions were destroyed. When the accused absconded after closing the prosecution evidence, the depositions should not have been destroyed. Unfortunately, the accused was questioned and only later it was found out that the records are not available. It is submitted that the only course open is a denovo trial. 2. Learned Counsel appearing for the respondent/ accused and learned Public Prosecutor were heard. 3. Even though the evidence was recorded earlier when petitioner was appearing in C.C.No.130/1991, the other accused were questioned under Section 313 of Code of Criminal Procedure, and after hearing the prosecution on the defence, the other accused were acquitted. After the presence of the petitioner was procured in the split up case, finding that the questions to be put to the petitioner are available in the case records and as petitioner absconded CR.R.No.1/2009 -3- only at that stage, Magistrate questioned the petitioner under Section 313 of Code of Criminal Procedure without the knowledge that the original depositions are not available as they were destroyed. Inspite of the steps taken to get certified copies of the depositions to reconstruct them, they are not available. 4. The question is what is the procedure to be adopted. The fact that the other accused were acquitted is not a ground to drop the proceedings at this stage for non- availability of records. As the Magistrate reported that copies of the statements of the prosecution witnesses, recorded by the investigating officer and the exhibits marked in the case are available, the only course open now is to direct a denovo trial. 5. Chief Judicial Magistrate is directed to conduct a denovo trial of the accused in C.C.No.154/2006. M.SASIDHARAN NAMBIAR JUDGE dkr