IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 Crl.Rev.Pet.No. 701 of 2011() ----------------------------------- CMP 73/2011 IN CC.1070/2007 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT -------------------------------------------------------- T.G.N.KUMAR, 33/3004, VENNALA P.O., ERNAKULAM, KOCHI-682 028. BY ADV. SRI.K.ANAND RESPONDENT(S): PETITIONER/STATE & RESPONDENT --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. THE SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, KOCHI CITY. 3. P.SAIDY, AGED 53 YEARS, S/O. MEETHIN, PADINJATTIL HOUSE, MANNARKKAD COLLEGE P.O., KUMARAMBATHUR, PALAKKAD DISTRICT. R1 & R2 BY PUBLIC PROSECUOTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. ……………..………..…………… Crl. Rev.Petn. No.701 of 2011 ………………………………………………… Dated this the 11 th day of March, 2011. O R D E R Petitioner is the defacto complainant in C.C No.1070/2007 of the Court of Addl. Chief Judicial Magistrate, Ernakulam. His grievance is that by the impugned order dated 06.01.2011, the learned Magistrate allowed CMP No.73/2011 in C.C No.1070/2007, allowing the petition to re- open the evidence under Section 311 of Cr.P.C, a petition moved for and on behalf of the accused by a new counsel. 2. I have heard Shri.K.Ananad, learned counsel appearing for the petitioner, learned Public Prosecutor and also perused the order impugned. 3. Learned counsel for the petitioner emphatically submitted that, the learned Magistrate erroneously allowed the highly belated petition filed under Section 311 of Cr.P.C, without properly understanding the oblique motive of accused to protract the matter, inspite of the order dated 09.04.2009, in Crl. Appeal No. 688/2009 of the Hon’ble Supreme Court. According to the learned counsel, the change of counsel and filing petition under Section 311 for Crl. Rev.Petn. No. 701 of 2011 2 re-opening of evidence are only dilatory tactics adopted by the accused to protract the matter. 4. Learned Public Prosecutor on instruction submitted that PW1, the defacto complainant was examined on 05.12.2007 and PW5 examined on 25.02.2008. The 313 questioning of the accused was conducted on 03.03.2008. Allegation in the above case is that, the accused has committed offence punishable under Section 420 of I.P.C connected with a diamond transaction. 5. The offence alleged, according to me is a serious one. It is true that, the prosecution evidence is over and the accused was questioned under Section 313 of Cr.P.C on 03.03.2008 and the case was posted for hearing. It is at this stage, the new counsel for the accused moved CMP No.73/2011 under Section 311 of Cr.P.C. The learned Magistrate, who is more familiar with the facts and circumstances involved in the case and who are aware of the nature of evidence so far adduced by the prosecution and applying his judicial mind came into a conclusion that, the petition preferred on behalf of the accused under Section 311 of Cr.P.C is to be allowed. Even though there is some Crl. Rev.Petn. No. 701 of 2011 3 delay in filing the petition, considering the fact that the learned Magistrate, after having satisfied the requirement for re-opening of the evidence under Section 311 allowed the prayer, I am of the view that, this court while exercising the revisional jurisdiction may not be justified, interfering with the order of the learned Magistrate, denying the opportunity to the accused to adduce evidence in support of his plea for an acquittal. Court must always open its door to let in evidence, whenever the situation demand, either from the side of the prosecution or from the side of the defence, so as to come into a correct finding and thereby to dispense the criminal justice. In the above circumstances, I find no reason to interfere with the order of the learned Magistrate and as such, this revision petition is devoid of any merit and accordingly the same is dismissed. Sd/- (V.K.MOHANAN) JUDGE ss/. //True Copy// P.A to Judge