IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 14TH DAY OF DECEMBER 2011/23RD AGRAHAYANA 1933 CRMC.No. 4141 of 2005 ( ) ------------------------- CC.385/2004 of J.M.F.C.-II(FOREST OFFENCES),MANJERI PETITIONERS/ACCUSED: -------------------- 1. SAINABA A.P., W/O.ABDULLA, 779, APM QUARTES, PARAPPANANGADI, MALAPPURAM DIST. 2. K.ABDULLA, S/O. KUNHIKAMMU, -DO- -DO- BY ADV. SRI.BABU S. NAIR RESPONDENTS/STATE & DEFACTO COMPLAINANT: ---------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANJERI POLICE STATION, THROUGH THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. SIBY SEBASTIAN, S/O.SEBASTIAN, KUNNAPILLY HOUSE, PUNNAKKAL, CALICUT DISTRICT. R1 BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DG CRMC.No. 4141 of 2005 ( ) APPENDIX PETITIONER'S ANNEXURES: ANNEXURE-A : COPY OF THE COMPLAINT DATED, 04.04.2003 FILED BY THE 2ND RESPONDENT BEFORE THE C.J.M, MANJERI. ANNEXURE-B : COPY OF THE DAIRY EXTRACT OF THE PROCEEDINGS IN C.C NO.385/2004 DATED, 18.10.2005 OF THE J.F.C.M - II, MANJERI. RESPONDENT'S ANNEXURES - NIL //TRUE COPY// P.A.TO JUDGE DG P.S.GOPINATHAN, J ---------------------------- Crl.M.C. NO. 4141 OF 2005 -------------------------- Dated this the 14th day of December, 2011. O R D E R This petition under Section 482 of the Code of Criminal Procedure is filed by the accused in C.C.385/2004 on the file of the Judicial Magistrate of the First Class – II, Manjeri seeking an order to quash Annexure B order. 2. From the statement of facts and argument advanced, it is revealed that the petitioners are facing prosecution for offences punishable under Sections 406, 420, 120B and 201 r/w Section 34 IPC in Crime No.319/2003 of the Manjeri Police Station. The petitioners, who are the wife and husband, pleaded not guilty. Therefore, they were sent for trial. After framing the charge, the case was posted for evidence. The evidence started on 10-11-2004 and closed on 14-06-2005. The statement of the petitioners were recorded on 28-06-2005. Thereafter, number of adjournments were made. The case was heard on 03-10-2005 and Crl.M.C. NO. 4141 OF 2005 2 posted for judgment to 06-10-2005. On two occasions, there was no sitting and the case was notified to 18-10-2005. On that day, the impugned Annexure B order which reads as follows was passed :- The R.C particulars of vehicle No.KL 8-L 9777 from the R.T.O Office, Thrissur is necessary for the just decision of the case. So, issue summons to the R.T.O,Thrissur to produce the R.C particulars of the vehicle and to give evidence. 3. Going by the order sheet of the trial court, it is seen that the case was posted to 08-11-2005. On that day, R.T.O was absent. Therefore, the case was posted to 29-11-2005. On that day, the Asst. Motor Vehicle Inspector attached to R.T.O, Thrissur was present. He was examined as CW1 and Ext.C1 was marked. It is further noted “CW1 submitted that the vehicle was transferred to R.T.O, Tirur. So in order to arrive a just decision of the case, issue summons to Joint R.T.O, Tirur to produce the details of the vehicle bearing No. KL 8-L Crl.M.C. NO. 4141 OF 2005 3 9777 by registered post with A/D under Section 311 of the Code of Criminal Procedure” and the case was posted to 19-12-2005. According to the learned counsel for the petitioner, the impugned order was already complied with. Thereafter, on 29-11-2005, again there is an order to call for records and now the petitioners are aggrieved of that order. 4. I have heard Adv. Sri.K.Rakesh, the learned counsel appearing for the petitioner and Smt.S.Hyma, the learned Govt. Pleader. Perused the records including the evidence of CW1 recorded on 29-11-2005 and Ext.C1 marked there. 5. From the evidence of CW1 and Ext.C1, it is disclosed that the records relating to the vehicle bearing No. KL 8-L 9777 was transferred to the Joint R.T.O, Tirur. It appears that it is on the basis of that report, the learned Magistrate had ordered to issue summons to the Joint R.T.O, Tirur. However, for what purpose the R.T.O, Thrissur was summoned is not disclosed from the available records. It is crucial to note that through CW1, the learned Magistrate Crl.M.C. NO. 4141 OF 2005 4 had not even elicited as to whether the records were transferred to the Joint R.T.O, Tirur subsequent to the prosecution or before the launching of the prosecution. If the transfer of records is subsequent to the launching of the prosecution, no purpose would be served by examining any officer attached to Joint R.T.O, Tirur or summoning any document. The learned Govt. Pleader is not in a position to submit as to why or for what purpose the evidence was reopened in a case which was posted for judgment and the witnesses were summoned. Therefore, in no way the order impugned can be justified. A case in which the evidence was closed on 14-06-2005 was adjourned on various dates till 03-10-2005, when it was heard and posted for judgment to 06-10-2005. The case could have been disposed months back. I have no other option but to deprecate the unnecessary adjournments 6. In the order impugned dated 18-10-2005, though, it is stated that the R.C particulars of the vehicle bearing No. KL 8-L 9777 is essential for the just decision of the case, how it is essential is not at Crl.M.C. NO. 4141 OF 2005 5 all mentioned. That order was complied. Again notice was ordered to some other witness and further documents were called for no good reason. It appears that the court has taken role of the investigating officer and suo motu searching for evidence one after another that too, in a case which was posted for judgment. In the above circumstance, I find that the order impugned and the subsequent orders are abuse of the process resulting miscarriage of justice. 7. The learned counsel for the petitioner canvassed my attention to the decision in Chandran Vs. State of Kerala 1985 KLJ 452. At para 5, this court has held . “Under Section 311 of the Code the Court is having the power to recall and reexamine any witness. But that could be only when the court is satisfied that it is essential for the just decision of the case. Recalling and reexamining a witness like the investigating officer for production and proof of a vital record having great relevance in deciding the guilt of the accused of and that too after conclusion of the evidence cannot be said to be essential for the just decision of the case. It may Crl.M.C. NO. 4141 OF 2005 6 result in miscarriage of justice”. The case on hand is worst as the witnesses summoned in this case are strangers and new documents are summoned. In Chandran's case, the witnesses summoned was the investigating officer, who was already examined. I find no reason to have a divergent conclusion. In the result, this petition succeeds. The order impugned is set aside. The learned Magistrate is directed to dispose of the case within two weeks from the date of receipt of the records. Forward the records forthwith. P.S.GOPINATHAN, JUDGE amk