IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.Rev.Pet.No. 106 of 2009() ----------------------------- AGAINST THE ORDER IN CMP 4883/2008 IN ST.106/2006 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): --------------------- SUNNY MATHEW, 44 YEARS, S/O.MATHEW, PUTHIYEDATH HOUSE THODUPUZHA. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): --------------- 1. JACOB JOHN, PUTHORA HOUSE, RESHMI NIVAS, NEAR KWA QUARTERS, KANJIRAMATTOM ROAD, THODUPUZHA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY PUBLIC PROSECUTOR SRI.C.M.NAZAR' THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.106 OF 2009 ------------------------------------------ Dated 9th January 2009 O R D E R Revision petitioner is the complainant in S.T.106/2006 on the file of Chief Judicial Magistrate, Kottayam. After closing his evidence revision peitioner filed C.M.P.4883/08, an application under Section 311 of Code of Criminal Procedure to re-open the evidence to enable him to examine a witness. Learned Magistrate as per order dated 13/11/08 dismissed the application for the reason that there is no justification to re-open the evidence, as revision petitoner has no such case in the complaint or proof affidavit. Revision is filed challenging the order. In view of the order to be passed in this revision petition, I do not find it necessary to issue notice to first respondent/accused. 2. Learned counsel appearing for petitioner pointed out that in cross examination by first respondent, revision petitoner as PW1 deposed that the witness sought to be examined was present at the time Crl.R.P.106/09 2 of transaction and therefore dismissal of the application on the ground that revision petitioner has no such case is unsustainable. Learned counsel made available a copy of the deposition of PW1 to fortify his contention. 3. Section 311 of Code of Criminal Procedure enables any court, at any state of a trial to summon any person as witness or examine any person as a witness though not summoned as witness or recall and re-examine any witness already examined, provided his evidence appears to be essential to the just decision of the case. Therefore when a petition is filed under Section 311 of the Code, learned Magistrate has to decide whether the evidence of the person sought to be summoned is essential for a just decision of the case. Impugned order only shows that revision petitioner has no case that the witness was present at the time of transaction. Deposition of PW1 made available by the counsel shows that revision petitoner had a case at the time of cross examination that the witness sought to be examined was present at the time of the transaction. In such circumstances, dismissal of the application on that ground is not sustainable. Crl.R.P.106/09 3 Revision is allowed. Order passed by the Magistrate in C.M.P.4883/2008 is set aside. Learned Magistrate is directed to re-consider C.M.P.4883/2008 and decide whether examination of the witness sought to be examined is essential for the just decision of the case and pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.