IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.MC.No. 4716 of 2008(P) -------------------------------------- CC.NO.230/2006 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY. .................... PETITIONER/ PETITIONER: --------------------------------------- T.P. PAVITHRAN, SON OF DAMODARAN MEMEBER, KUTHUPARAMBA EDUCATIONAL SOCIETY, MURIYAD P.O., KUTHUPARAMBA, KANNUR DISTRICT. BY ADV.MR.M.RAMESH CHANDER. RESPONDENTS/ ACCUSED AND STATE: ---------------------------------------------------------- 1. R.K. RAGHAVAN, SON OF ANDI, PANUNDA, P.O. PACHAPOYIKA, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI -31. R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB, R1 BY ADVS. MR.K.P.HAREENDRAN, SMT.MIJI JOHN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 4716 of 2008 ================== Dated this the 4th day of June, 2009. O R D E R Complainant in C.C.No.230/2006 filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure V and VI orders passed by Additional Chief Judicial Magistrate, Thalassery. Annexure V order was passed in CMP No.3139/2008 filed under Section 311 of Code of Criminal Procedure to receive documents at the stage of posting the case for cross-examination of prosecution witnesses, after framing of charge under Section 246 of Code of Criminal Procedure. Annexure VI order was passed in CMP No.3140/2008, a petition filed under Section 91 of Code of Criminal Procedure to direct the accused to produce documents. Both the petitions were dismissed. 2. Learned Counsel appearing for petitioner and learned Public Prosecutor were heard. There was no representation for first respondent. Crl.M.C.No.4716/2008 -2- 3. CMP No.3139/2008 was filed under Section 311 of Code of Criminal Procedure to receive additional documents, which were not produced at the time when evidence of prosecution witnesses were recorded as provided under Section 244 of Code of Criminal Procedure. Case of the petitioner in Annexure II petition is that earlier the accused had undertaken to produce relevant documents and accounts before the Court, but he deliberately did not produce them as undertaken and later he destroyed some documents and created some false documents and the documents produced along with the petition are necessary to prove the prosecution case and those documents were omitted to be produced earlier and hence they are to be received. Under Annexure V order, Magistrate dismissed the petition holding that those documents were not produced at the time when evidence was recorded under Section 244 of Code of Criminal Procedure and when the case is posted for cross-examination of prosecution witnesses under Section 246(5), the documents cannot be received and as it would cause prejudice to the Counsel. Crl.M.C.No.4716/2008 -3- Learned Counsel appearing for petitioner pointed out that the documents had earlier agreed to be produced by the accused but he deliberately did not produce the documents and those documents are relevant and necessary to decide the question involved in the case and in such circumstances the documents should have been received in evidence. 4. Section 311 of Code of Criminal Procedure enables the Magistrate at any stage of trial to summon any person as a witness and examine, if it appears to be essential to the just decision of the case. While dismissing the application in Annexure V order, the Magistrate did not consider the question whether the documents are essential for a just decision of the case. The petition was dismissed on technical reasons stating that documents were not produced earlier and at the stage of cross-examination of prosecution witnesses under Section 246(5) of Code of Criminal Procedure, the documents cannot be produced. Section 311 of Code of Criminal Procedure enables the Magistrate at any stage of the trial to summon any person and examine as a witness or to recall and reexamine Crl.M.C.No.4716/2008 -4- a witness already examined, if it appears to him that it is necessary for a just decision in the case. The Magistrate should not have dismissed the petition without considering the crucial aspect, viz. whether it is necessary for a just decision of the case. As this aspect was omitted to be taken note of by the Magistrate, Annexure V order is quashed. The Magistrate is directed to reconsider and pass appropriate order in CMP No.3139/2008 in accordance with law in the light of the above observations after hearing the prosecution and the defence. 5. CMP No.3140/2008 was rightly dismissed by the Magistrate holding that the accused cannot be directed to produce documents as sought for. The prayer is to direct the accused to produce the documents under Section 91 of Code of Criminal Procedure, which is not maintainable. I find no reason to interfere with Annexure VI order. Crl.M.C. is disposed of accordingly. M.SASIDHARAN NAMBIAR JUDGE dkr