IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 Crl.MC.No. 1944 of 2011() ------------------------ CC.767/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, MAVELIKKARA .................... PETITIONERS / ACCUSED 1 & 2 : ----------------------------------------------- 1. RAVEENDRAN PILLAI, S/O.VASUDEVAN KARUNAKARAN, JAYABHAVAN, EAST OF PANKAYIL COLONY, CHUNAKKARA, ALAPPUZHA DISTRICT. 2. VIJAYALEKSHMI PILLA, W/O.RAVEENDRAN PILLAI, JAYABHAVAN, EAST OF PANKAYIL COLONY, CHUNAKKARA, ALAPPUZHA DISTRICT. BY ADV. SRI. S. BIJU (KIZHAKKANELA) RESPONDENT : ---------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 1944 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE AI : CERTIFIED COPIES OF COMMON ORDER DATED 02/05/2011 IN CMP NO. 2154/2011 AND 2212/2011 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT – I MAVELIKKARA. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1944 of 2011 ==================================== Dated this the 28th day of June, 2011 O R D E R Public Prosecutor takes notice for the respondent. 2. Petitioners are accused 1 and 2 in C.C. No.767 of 2008 of the court of learned Judicial First Class Magistrate-I, Mavelikkara for offences punishable under Sections 323 and 324 read with Section 34 of the Indian Penal Code. It is submitted that petitioners could not cross-examine P.Ws.6 and 7 since according to them their counsel was undergoing hospitalization and treatment. Hence they filed C.M.P. No.2154 of 2011 under Section 311 of the Code of Criminal Procedure to recall P.Ws.6 and 7 for examination. That request was disallowed by the learned Magistrate vide Annexure-A1, order dated May 22, 2011 on the ground that on the day petitioners said, their counsel was hospitalized P.W.5, the Medical Officer who issued the wound certificate was cross-examined by counsel for petitioners. Learned counsel submitted that to P.W.5, only a few questions were required to be asked and that was done through another counsel but so far as P.Ws.6 and 7 are concerned they were to be cross-examined thoroughly which could not be done through CRL.M.C. No.1944 of 2011 -: 2 :- another counsel. 3. Section 311 of the Code gives power to the court to recall any witness already examined. That power has to be exercised when the court is satisfied that it is necessary in the ends of justice to do so. Cross-examination of prosecution witnesses is a matter of much importance so far as the defence is concerned. On hearing counsel I find no reason to think that request on the part of the petitioners for time to cross-examine P.Ws.6 and 7 was to prolong the proceeding. Hence I am inclined to allow the request. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-A1, order dated May 02, 2011 passed by learned Judicial First Class Magistrate-I, Mavelikkara is set aside and C.M.P. Nos.2154 of 2011 and 2212 of 2011 (in C.C. No. 767 of 2008) will stand allowed. Learned Magistrate shall recall P.Ws.6 and 7 and give petitioners opportunity to cross-examine them. THOMAS P. JOSEPH, JUDGE. vsv