IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 Crl.Rev.Pet.No. 2073 of 2008() ------------------------------ AGAINST THE ORDER DATED 19/06/2008 IN CMP 4879 2008 IN CC.513/2008 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER: ------------------ G.RAMESAN, AGED 78 YEARS, SUMTHRIPTY, RAJADHANI BUILDINGS, EAST FORT, TRIVANDRUM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. THE CENTRAL BUREAU OF INVESTIGATION, (CBI/SPE) REP BY ITS SUPERINTENDENT, ERNAKULAM. BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.2073 of 2008 = = = = = = = = = = = = = = Dated this the 30 th day of June, 2008 ORDER Petitioner, who was the father in law of one Premshanker who is the 1st accused in C.C.No.513 of 1995 on the file of the Chief Judicial Magistrate, Ernakulam for offences punishable under Sections 323, 342, 357, 427 & 465 read with 120B IPC, challenges Annexure D order dismissing his petition filed under Section 284 Cr.P.C requesting to dispense with his attendance before the court and to examine him on commission. 2. I heard the learned counsel for the petitioner as well as the learned Standing Counsel for the CBI. 3. The petitioner is Charge Witness No.60 in the above case. According to the prosecution, it was by travelling in the Contessa car, (of which the petitioner's son is the registered owner) which was made available to the 1st accused by the petitioner herein, that the aforementioned offences were committed by the 1st accused and others in prosecution of the criminal conspiracy hatched by them. Since the prosecution Crl.R.P.No.2073 of 2008 2 was desirous of examining the petitioner, summons was issued to the petitioner. Thereupon the petitioner filed Annexure C application before the Chief Judicial Magistrate, to the effect that he was laid up and could not travel from Thiruvananthapuram to Ernakulam due to his heart disease and old age. He also produced a medical certificate issued by Dr.Bhahuleyan of Ananthapuri Hospitals and Research Institute, Thiruvananthapuram. He therefore prayed for dispensing with his attendance and for issuing a commission under Section 284 Cr.P.C for his examination. The said petition was dismissed by the Chief Judicial Magistrate for the reason that the petition should have been routed through the Special Prosecutor in charge of the case. The said order is assailed in this petition. 4. It is not necessary for a prosecution witness to route his application for dispensing with his attendance, through the prosecutor in charge of the case. The witness can engage a private lawyer and voice his grievance before the court. The question as to whether the petitioner is a heart patient and unable to travel all the way from Thiruvananthapuram to Crl.R.P.No.2073 of 2008 3 Ernakulam is a matter which has to be considered by the trial court and appropriate order passed either directing him to appear before the court or dispensing with his attendance and appointing commission under Section 234 Cr.P.C for his examination. The Prosecutor in charge of the case alone has a discretion to decide as to which all witnesses have to be examined and which all witnesses has to be given up. If the prosecutor is insisting on the examination of a prosecution witness shown as a charge witness, the court will have to secure his presence either on summons or on warrant unless the court, having regard to the physical condition and other factors of the witness, decides to examine him on commission by entrusting the said task with a Judicial Magistrate. Since the court below has not entered any finding either way on the merits of the application, the impugned order is set aside and the matter is remitted back to the court below for deciding whether the petitioner should be examined in person as a witness by the Chief Judicial Magistrate or whether his examination should be conducted under Section 284 Cr.P.C, through a commission. Crl.R.P.No.2073 of 2008 4 5. Warrants, if any passed by the Chief Judicial Magistrate pursuant to the impugned order shall stand recalled. This Crl.R.P. is disposed of as above. Dated this the 30 th day of June, 2008. V. RAMKUMAR, JUDGE sj