IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.Rev.Pet.No. 758 of 2007() --------------------------------------- AGAINST THE ORDER DATED 25/10/2006 IN CMP 4565/2006 IN CC.18/2003 OF JUDL. MAGISTRATE OF FIRST CLASS, KOYILANDY .................... REVN. PETITIONER/RESPONDENT: ------------------------------------------------- SREEKALARAJA, D/O.KRISHNAKUMAR, SREERUDRAM, VALIYAPARAMBATH HOUSE, MAKKADA AMSOM AND DESOM, KOYILANDY TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT/PETITIONER: --------------------------------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, ELATHUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 758 OF 2007 ............................................ DATED THIS THE 6th DAY OF NOVEMBER, 2008 ORDER Section 311 of Code of Criminal Procedure enables the court at any stage of any enquiry, trial or other proceedings, to summon any person as a witness or examine any witness in appearance though not summoned as a witness or recall or examine any person already examined, if the court finds that his evidence appears to be essential for the just decision of the case. The accused is challenging the order passed by Judicial First Class Magistrate, Koyilandy in CMP 4565 of 2006 in C.C. 18 of 2003, allowing the petition filed by Assistant Public Prosecutor under Section 311 of Code of Criminal Procedure for examination of additional witnesses. The order is challenged by the accused, contending that petitioner could not file an objection to the petition and the order was passed only for the reason that no objection was filed and though objection was made ready, it could not be filed by the time the order was passed. 2. Learned counsel appearing for petitioner submitted that before allowing the application, learned Magistrate should have CRRP 758/2007 2 considered the question whether for a just decision of the case, the additional witnesses are to be examined and reasons for allowing the petition are not shown in the order and so the order may be set aside and an opportunity may be granted to file an objection and Magistrate may be directed to pass appropriate order thereafter. 3. By the order dated 25.1.2006, learned Magistrate permitted prosecution to examine three additional witnesses. One witness is Auditor of the Kerala Co-operative Milk Marketing Federation to prove the audit report, though not originally produced but was produced later and marked. The other two witnesses are Registrar of Audit wing of Milma, Kozhikode and the other, milk tester. The argument of the learned counsel is that as seen from the order, learned Magistrate allowed the application only for the reason that petitioner has not filed a counter. 4. Even if prosecution did not file an application to examine the additional witnesses, court has the power under Section 311 of Code of Criminal Procedure to summon and examine additional witnesses, if it appears that their evidence is necessary for a just decision of the case. But learned Magistrate CRRP 758/2007 3 did not give any reason in the order to exercise the power under Section 311 of Code of Criminal Procedure, except that an objection was not filed. In such circumstances, the order passed by learned Magistrate dated 25.10.2006 is set aside. CMP 4565 of 2006 is remanded to learned Magistrate for passing fresh order in accordance with law. It is made clear that petitioner is entitled to file an objection, if not filed, within two weeks from today before learned Magistrate. Learned Magistrate is directed to pass orders in CMP 4565 of 2006 in accordance with law, after hearing the parties. It is made clear that even if statements of those witnesses were not recorded by the police under Section 161 of Code of Criminal Procedure, Magistrate can permit to examine the witnesses if their evidence is necessary for a just decision of the case. Send back the records forthwith. M.SASIDHARAN NAMBIAR, JUDGE lgk/-