IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.MC.No. 3835 of 2008() ------------------------- AGAINST THE ORDER DATED 18/09/2008 IN CRMP 3304/2008 IN SC.906/2005 of ADDL.SESSIONS COURT, THALASSERY .................... PETITIONER(S): --------------- SAJINI, W/O.LATE DINESH BABU, KANDAM KANNU AMSOM, AYITHARA MAMBARAM DESOM, THALASSERY TALUK. BY ADV. SRI.S.RAJEEV RESPONDENT(S): --------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.121 OF 2003 OF KUTHUPARAMBA POLICE STATION). 2. SOMASUNDARAN, S/O.ASARI SANKARAN, ASARI MUKKU, KANDAMKUNNU AMSOM, KAITHARI DESOM, THALASSERY TALUK. 3. VELLANAMBU SANTHOSH, S/O.ONAKKAN, KOMARAN, KAVULLAPARAMBATH HOUSE, KANDAMKUNNU AMSOM, MAMPURAM DESOM. 4. MULLANPARAMBIL SASI, S/O.AMBATTU BALAN, KANDANPARAMBU AMSOM, MAMPARAM DESOM, THALASSERY. 5. CHATHAMPALLY SHAJI, S/O.ACHUTHAN, KALLAYAD CHALIL, KAITHARI DESOM, THALASSERY. .......2 -2- 6. KALYADI HARIDASAN, THODIKULAM AMSOM, DESOM, THALASSERY. 7. SANIL, S/O.GOVINDAN, MANAMTHERI AMSOM, KAITHARI DESOM, THALASSERI. 8. TIJESH, S/O.TAILOR RAVI, MANAMTHERI AMSOM, KAITHARI DESOM, THALASSERY. 9. SHIBI, S/O. KALLANANDI SHAJI, MANAMTHERI AMSOM, KAITHARI DESOM, THALASSERRY. BY P.P. SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3835 of 2008 ------------------------------------------------- Dated this the 16th day of October, 2008 ORDER The petitioner is the widow of the deceased, in respect of whose murder a prosecution under Sec.302 IPC is pending. The petitioner had earlier come to this Court complaining about the inadequate prosecution and the failure of the State to appoint a Special Prosecutor. That Crl.M.C. was disposed of by Annexure-A1 order in which, inter alia, it was observed that the private lawyer engaged by the petitioner shall have a role to play in the prosecution under Sec.301 Cr.P.C. 2. The trial is over. The matter has reached the stage of arguments. The crucial witnesses examined by the prosecution to prove the occurrence – P.Ws.1 to 3, had turned hostile to the prosecution. In the course of their cross-examination, they were confronted with their earlier statements made to the Crl.M.C. No. 3835 of 2008 -: 2 :- police in the course of investigation. But most unfortunately there has been an omission to mark the relevant contradictions when the Investigating Officer who allegedly recorded such statements was examined in court. When this was realised, the learned Public Prosecutor, it is submitted, did not choose to file an application. The petitioner therefore intervened to remind the court of its duty to invoke the jurisdiction under Sec.311 Cr.P.C. to ensure that those contradictions are marked and admitted in evidence. That application filed by the petitioner under Sec.311 Cr.P.C. stands dismissed by the impugned order. The petitioner claims to be aggrieved by that order. 3. Notice was given to the learned Public Prosecutor. Apprehending that waiting for issue and return of notice to the accused would unnecessarily consume time and contribute to protraction, I have not ordered notice to the accused. 4. I have gone through the impugned order. In the impugned order except that there is need for expeditious disposal, no reason is shown by the learned Sessions Judge as to why the jurisdiction under Sec.311 Cr.P.C. is not being invoked. In the petition filed by the petitioner, it is specifically averred that there are contradictions marked during the testimony of P.Ws.1 to 3 which remain without being formally proved during Crl.M.C. No. 3835 of 2008 -: 3 :- the examination on oath of the Investigating Officer. 5. Having considered the submissions of both sides, I am satisfied that this Crl.M.C. can now be disposed of allowing the same in part with appropriate observations. 6. In the result: (a) This Crl.M.C. is allowed. (b) The impugned order passed by learned Sessions Judge is set aside. (c) The learned Sessions Judge is directed to invoke his powers under Sec.311 Cr.P.C. suo motu to ensure that the contradictions marked in the Case Diary statements of P.Ws.1 to 3 are got proved by recalling the Investigating Officer who recorded such statements. (d) The learned Sessions Judge shall ensure that this is achieved without any unnecessary wastage of time. 7. Hand over a copy of this order to the learned counsel for the petitioner. (R. BASANT, JUDGE) Nan/ Crl.M.C. No. 3835 of 2008 -: 4 :-