IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 Crl.MC.No. 184 of 2010() ---------------------------------- CRMP. 4507/2009 IN SC.593/2005 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE .................... PETITIONER/ACCUSED NO.1 ----------------------------------------- P.D. SHAJI, AGED 40 YEARS, S/O.DIVAKARAN, RESIDING AT MUNDOT, AMBALATHARA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. MR.SURESH KUMAR KODOTH RESPONDENTS/COMPLAINANT/STATE -------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, HOSDURG POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 184 OF 2010 =========================== Dated this the 19th day of January,2010 ORDER Petitioner is the first accused in S.C.593/2005 on the file of Additional Sessions Court (Adhoc-III), Kasargod. When the Investigating Officer was examined as PW6, he was not cross examined by the accused. Crl.M.P.4507/2009 was filed on the very next day for recalling PW6 for cross examination, under section 311 of Code Criminal Procedure stating that as the counsel was held up due to traffic jam, the witness could not be cross examined and for cross examination, in the interest of justice, the witness is to be recalled. Learned Additional Sessions Judge dismissed the petition on 31.12.2009 for the reason that on the previous day there was no prayer for adjournment and therefore there is Crl.M.C.184/2010 2 no reason to recall PW6 and also for the reason that petitioner has no locus standi to file the petition. True, the petition was filed not by the accused but by the counsel. But it is definitely for and on behalf of the accused. That petition was filed by the counsel because the failure to cross examine the witness was due to the fault of the counsel and not that of the accused. In such circumstance, learned Additional Sessions Judge was not justified in dismissing the petition on the ground that the learned counsel has no locus standi to file the petition. 2. When an Investigating Officer was not cross examined and stating that the counsel was held up in traffic jam and therefore he could not reach the court and cross examine the witness when examined, and the petition for that relief was filed on the very next posting day,learned Additional Sessions Judge is not justified in dismissing the petition. It is seen that the petition was filed on Crl.M.C.184/2010 3 17.12.2009 and was called in the Bench on 18.12.2009 and was ultimately dismissed on 31.12.2009. The witness could not have been recalled and examined within that period, without causing any prejudice either to the prosecution or to the defence. In such circumstances, Petition is allowed. The order in Crl.M.P.4507/2009 in S.C.593/2005 on the file of Additional Sessions Judge, Kasargod is set aside. Learned Additional Sessions Judge is directed to recall PW6 and permit the petitioner to cross examine the witness. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006