IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 Crl.MC.No. 2271 of 2010() ------------------------- CRRP.64/2008 of SESSIONS COURT, PALAKKAD CRMP.4255/2007 of JFMC-I, PALAKKAD .................... PETITIONER(S): 2ND ACCUSED: --------------------------- KANAKAM, W/O.BALAGOPALA MENON, ITTIRAMKANDATH HOUSE, KUZHALMANNAM, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): DEFACTO COMPLAINANT/REVISION PETITIONER: ------------------------------------------------------- 1. SUNANADA, D/O.SANKARI AMMA, PULIKKAL VEEDU, ANJUMOORTHI MANGALAM, ALATHUR TALUK. 2. THE SUB INSPECTOR OF POLICE, KOTTAYIL POLICE STATION, PALAKKAD DISTRICT REP.PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE R2 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.3655 OF 2010 IN CRL.M.C.NO.2271 OF 2010 //DISMISSED// 27.7.2010. SD/- S.S.SATHEESACHANDRAN, JUDGE. /TRUE COPY/ S.S.SATHEESACHANDRAN, J. ------------------------------------------- Crl.M.C.No.2271 OF 2010 ------------------------------------------- Dated this the 27th day of July, 2010 O R D E R 1.Petitioner is the second accused in C.C.518/05 on the file of the Judicial First Class Magistrate, Palghat. Along with four others, she is prosecuted for the offence punishable under Section 498 A read with Section 34 IPC. Petitioner is the mother of the first accused and the above case arose from a crime registered on a complaint given by the first respondent, wife of Damodaran. The other accused in the case are close relatives of the petitioner and Damodaran, her son. 2.The first accused Damodaran had been granted permanent exemption from appearing before the court on an application moved by him since he is employed in a Gulf country, viz. Qatar. After recording of the evidence, learned Magistrate permitted to have his questioning also through his counsel. Crl.MC.2271/10 2 The questionnaire supplied by the Magistrate, duly answered by the counsel for Damodaran, was also produced before the court. Thereafter, the Additional Public Prosecutor moved an application for fresh questioning of Damodaran contending that the questionnaire answered by his counsel was not proper and correct. He did not apply to have his questioning through his counsel, moving a fresh application, stating the supporting reasons thereof, was the challenge raised. Learned Magistrate, having regard to the fact that the questioning of Damodaran though his counsel had already been done by orders of the court, dismissed the above petition. The complainant thereupon challenged that order of the learned Magistrate filing a revision as C.R.P.64/08 before the Sessions Judge, Palghat. Learned Sessions Judge, after hearing both sides and taking note of the decision rendered by the Apex Court in Basavaraj R.Patil and Others v. State of Karnataka and Others [AIR 2000 SC 3214] held that the questionnaire returned by the counsel for Damodaran cannot Crl.MC.2271/10 3 be acted upon as there was non-compliance of the procedure stipulated under the above decision. Interfering with the order of the learned Magistrate and setting it aside, the revision was allowed directing to examine the first accused Damodaran under Section 313 Cr.P.C. in accordance with the decision referred to supra. Propriety and correctness of that order passed by the learned Sessions Judge is challenged in this petition by the second accused in the case, the mother of the first accused. 3.A preliminary objection was raised by the learned counsel for the first respondent complaining that the petitioner herein, mother of Damodaran, cannot be deemed to be aggrieved in any manner by the impugned order passed by the learned Sessions Judge as it relates only to Damodaran and not to the other accused in the case. On the facts presented and submission made by the counsel on both sides, I find the objections raised is too hyper-technical as the procedure Crl.MC.2271/10 4 taken by the Magistrate in having the questioning of one of the accused through his counsel is the matter in issue and that invariably affects the rights of the other accused as well in having a speedy trial of the case. On the merits of the case also, it is seen that even in the application moved by Damodaran seeking permanent exemption under Section 205 Cr.P.C., he had made a request that he may be permitted to have his questioning under Section 313 Cr.P.C. through his counsel. Evidently, on the facts involved, there cannot be any doubt that when the learned Magistrate permitted questioning of Damodaran by supplying a copy of the questionnaire to his counsel, the Assistant Public Prosecutor has not raised any objection. Once the learned Magistrate has passed such an order and the questionnaire duly answered was returned by the counsel for Damodaran, a review of the earlier order by moving an application on the ground that there was some defect in permitting the questioning of the first accused through counsel is Crl.MC.2271/10 5 impermissible in view of the bar under Section 362 Cr.P.C. Be that as it may, learned Sessions Judge has interfered with that order of the learned Magistrate in revision, though, on the face of the order, it was not a revisable order under Section 397 Cr.P.C. 4.Through the Registry it was ascertained whether the questionnaire containing the answers of Damodaran under Section 313 Cr.P.C. had been returned to the court by his counsel with his affidavit or not. It has been reported that no affidavit from Damodaran was produced when the questionnaire was returned, but, it was accompanied only with a statement of the counsel. That, of course, is not sufficient to act upon the answers given to the questionnaire, though, in his previous affidavit, he has requested for treating them so. Having regard to the decision of the Apex Court referred to above, the Section 313 statement of the accused in respect of a questionnaire supplied and returned Crl.MC.2271/10 6 with answers by his counsel, it is absolutely necessary that such questionnaire should be returned with the affidavit of the accused. In the given facts of the case, the defect in the production of the questionnaire returned by Damodaran(A1) has to be permitted to be cured by enabling him to file an affidavit stating in unmistakable terms that whatever answers given to the questionnaire are given by him. Such an affidavit shall be filed by Damodaran (A1) within a period of six weeks from the date of this order. The learned counsel for the first accused submits that a duly attested affidavit satisfying the requirement of law will be tendered in support of the answers recorded in the questionnaire returned within the period fixed. On such affidavit being filed by the first accused, it shall be treated as having been returned complying with the requirements in the decision referred to above. In case of any default by the first accused to file such an affidavit, learned Magistrate shall take appropriate steps for his questioning under Section 313 Cr.P.C., rejecting the Crl.MC.2271/10 7 questionnaire already produced. The petition is disposed modifying the order passed by the learned Sessions Judge as indicated above. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.28/07.