IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Crl.MC.No. 3515 of 2009() --------------------------------------- AGAINST THE ORDER IN MP 3949/09 IN CC.896/2002 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... PETITIONER(S): ------------------------ 1. BIJU, AGED 37, S/O. VARGHESE, KANNISSERY, AMBATTU DESOM, VADAKKUMBHAKAM, MUKUNDAPURAM TALUK. 2. JOHNSON, AGED 46, S/O. ETTUP, PUTHENVEETIL (H), AMBAZHAKKATTUKARA, VADAMA - VADAKKUM, BHAKAM VILLAGE. BY ADV. MR.K.S.RAJEEV (ALUVA) RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY S.I OF POLICE, PARAVOOR POLICE STATION BY P.P HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3515 OF 2009 ------------------------------------------ Dated 16th November 2009 O R D E R Petitioners are accused in C.C.896/2002 on the file of Judicial First Class Magistrate-I, North Paravur. When the expert was summoned and appeared before the learned Magistrate as a prosecution witness, counsel appearing for the petitioners sought adjournment. It was not granted and expert was examined as PW11 and his report was marked as Ext.P25. Case was posted for questioning the accused under Section 313 of Code of Criminal Procedure. Petitioners then filed Crl.M.P.3949/2009 under Section 311 of Code of Criminal Procedure to re-call PW11 for cross examination. Under Annexure-B order the petition was dismissed. Thereafter petitioners were questioned under Section 313 of Code of Criminal Procedure and case was posted for defence evidence to 26/11/2009. 2. Annexure-B order shows that learned Magistrate dismissed the petition on the ground that petitioners had not availed of the opportunity to Crmc 3515/09 2 cross examine the expert when he was examined and hence witness cannot be re-called. 3. Certified copy of the order shows that after receipt of the report of the expert, the case was posted to 15/10/2009 with a direction to take steps to examine the remaining witnesses including the expert witness. On 15/10/2009 the export witness was present and he was examined as PW11 after rejecting the prayer for adjournment. As the witness was not cross examined the petition was filed to recall him. On the facts and circumstances of the case I do not find that learned Magistrate was justified in dismissing the petition filed for re-calling PW11, on the ground that the counsel did not cross examine him on the earlier occasion. As is clear from the order sheet, case now stands posted for defence evidence. If petitioners sought to examine PW11 as a defence witness, learned Magistrate should have necessarily allowed that prayer. In such circumstances, learned Magistrate was not justified in not granting an opportunity to cross examine PW11. At least, the Magistrate could have allowed that application on terms. Petition is allowed. Annexure-B order is Crmc 3515/09 3 quashed. Judicial First Class Magistrate-I, North Paravur is directed to re-call PW11 for the purpose of his cross examination, on the petitioners depositing sufficient amount necessary for paying batta, as well as the expenses of the witness. Petitioners shall deposit the amount as fixed by the court within two days of fixing the amount. M.SASIDHARAN NAMBIAR, JUDGE. uj.