IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 Crl.MC.No. 3543 of 2007() CC.387/2004 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE .................... PETITIONER: PW9 RAMESHAN, S/O.K.P.PERUMAL PILLAI, AGED 41 YEARS, RESIDING AT POOLAVALAPPIL HOUSE, WEST HILL P.O, KOZHIKODE. BY ADV. SRI.P.K.RAMKUMAR SMT.ANITHA RAMKUMAR RESPONDENTS: ACCUSED AND DEFACTO COMPLAINANT 1. K.P.RAJAN, S/O.GOPINATHAN, AGED 38 YEARS, KANNOTTIL HOUSE, KEERANKUZHIPARAMBA, MEDICAL COLLEGE P.O., KOZHIKODE. 2. K.GOPINATHAN, S/O.GOPALAN, AGED 62 YEARS, KANNOTTIL HOUSE, KEERANKUZHIPARAMBA, MEDICAL COLLEGE P.O., KOZHIKODE. 3. SHARADA, W/O.GOPINATHAN, AGED 58 YEARS, KANNOTTIL HOUSE, KEERANKUZHIPARAMBA, MEDICAL COLLEGE P.O., KOZHIKODE. 4. K.G.RAJI, W/O.RAMESHAN, AGED 37 YEARS, DO. DO. 5. SHAKI, D/O.SUKUMARAN, AGED 31 YEARS, RESIDING AT 27/407, ARAYADATH KANDY PARAMBA, NEAR S.K.PARK, PUTHIYARA, CALICUT, KOZHIKODE DISTRICT. 6. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN SRI. M.S. BREEZE, PUBLIC PROSECUTOR SRI.R.SUDHISH SMT.M.MANJU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== CRL.M.C. No. 3543 of 2007 ========================== Dated this the 30th day of January, 2008. O R D E R In this petition filed under Section 482 Cr.P.C, the petitioner Rameshan seeks to expunge the remarks made against him by the Special Judicial First Class Magistrate (Marad Cases), Kozhikode while disposing of C.C. No. 387/2004. The allegedly offending remarks are obtained in paragraph 8 of the Annexure I judgment dated 11.01.2006 in C.C. No. 387/2004. 2. Opposing this application Advocate Shri. R. Sudhish, the learned counsel appearing for respondents 1 to 4 who were respectively accused Nos.1 to 4 in C.C. No. 387/2004 submitted that the observations in paragraph 18 of the Annexure I judgment were well deservingly made on the basis of the evidence adduced in that case. He further submitted that the petitioner herein who was examined as PW9 in that case, had an opportunity to explain the adverse circumstances put to him during his cross examination and the evidence on record in that case justified the remarks made by the learned Magistrate and in the facts and circumstances of the case those remarks were necessary for the proper disposal of that case. CRL. M.C No. 3543 of 2007 : 2: 3. I heard Advocate Shri. P.K. Ramkuamar, the learned counsel appearing for the petitioner as well as Advocate Shri. K.M.Jamaludheen, the learned counsel appearing for the 5th respondent, Shaki. The offending remarks are to be found in paragraph 8 of Annexure A1 judgment which reads as follows: “The accused have a contention that PW9 had some illicit connection with PW1. Though it is not a forum to decide the above allegation and a litigation is pending between PW9 and A4 on this aspect, I find there are indication to show that those allegations are not baseless. The interest taken by PW9 to give evidence against his own wife and in laws, his frequent visit to the residence of PW1 when she was residing in the rented house, so many cases and complaints filed against him by the accused as admitted by him during cross-examination make it clear that he has a great role in the entire episode. That may be the reason for the strained relationship between PW1 and the accused. AS rightly argued by the learned counsel for the accused, incapacity of A1 to procreate a child may made PW1 mentally hostile to the accused. That made her to file a complaint before the court against the accused.” 4. C.C. No. 387/2004 arose out of Crime No. 28/2004 of Medical College Police Station, Kozhikode registered for offences punishable under Sections 498 A and 406 r/w Section 34 IPC. The de facto complainant in that case was the 5th respondent herein Shaki who was examined as PW1. Her husband is one Rajan who was the 1st accused in that case. Rajan's father Gopinathan was A2 and Rajan's mother Sharada was A3 in that case. Rajan's sister Raji was the 4th accused in that case. A1 to A4 in C.C. No.387/04 are respondents 1to 4 in this Crl. M.C. The petitioner herein is the husband of the said Raji. The CRL. M.C No. 3543 of 2007 : 3: petitioner was examined as PW9 in C.C.No. 387/2004. I perused the deposition of the petitioner herein examined as PW9 as well as the deposition of the 5th respondent herein (Shaki) examined as PW1 in that case. There is nothing in their testimony to come to the reasonable conclusion that there was an illicit relationship between the petitioner herein and the 5th respondent herein. No doubt, a suggestion was made to the petitioner herein examined as PW9 that he had an illicit affair with the 5th respondent herein. But that suggestion was emphatically denied by him. It is true that when examined as PW9 the petitioner had stated that himself and PW1 (Shaki) had arranged a house for the residence of Shaki. This statement was clarified by him in re-examination to say that by PW1 what he meant was A1(Rajan) and not Shaki. There was no further cross-examination to the above clarification. The purpose of examining the petitioner herein as PW9 in that case was not to prove any illicit relationship between him and PW1. That was not a fact in issue in that case although the 1st accused therein, who is the husband of Shaki had a contention that there was an illicit relationship between the petitioner herein and Shaki. But, in the absence of any material before the court, there was no warrant for coming to the conclusion that there CRL. M.C No. 3543 of 2007 : 4: was an illicit affair between the petitioner herein examined as PW9 and the 5th respondent herein examined as PW1 in that case. The direct impact of the observation extracted above is that it was on account of the illicit relationship which was developed between the petitioner herein and the 5th respondent herein that the matrimonial relationship between the 1st accused and his wife Shaki got strained. In the absence of any evidence in that behalf, the above observation was wholly unwarranted and it will have the effect of charecterising the petitioner as a person of questionable moral character. He appeared in that case only as a prosecution witness and he did not have an opportunity of offering an explanation with regard to the finding which was eventually made against him in the judgment in question. Moreover, such an observation was unnecessary for the disposal of C.C. No. 387/2004. Even the learned Magistrate himself has observed that that was not a forum to decide the allegation made against the petitioner herein and the complainant, namely, Shaki. Merely because the 1st accused therein had such a contention , in the absence of any acceptable material in support of such contention, it was impermissible for the Magistrate to make an observation affecting the moral character of PW9 (petitioner herein) who was only a prosecution CRL. M.C No. 3543 of 2007 : 5: witness. Admittedly, there are subsequent cases between the petitioner and his wife Raji who was the 4th accused in the aforesaid case. No doubt, Annexure I judgment is not one which is inter- parties as regards the petitioner and his wife. Hence it may not fall under Section 42 of the Evidence Act so as to become relevant to be used in a proceeding between the petitioner and his wife. But still, the observation made by the Magistrate has the definite tendency of prejudicing the mind of a court to the detriment of the petitioner herein. Hence, the portion starting from “the accused have a contention” and ending with “that may be the reason for the strained relationship between PW1 and the accused” will stand expunged from Annexure A1 judgment since it was made on the basis of a pure surmise without any evidence to support the same. It is needless to mention that in the litigation between the petitioner and his wife the court will have to record the necessary findings on the basis of the independent evidence adduced in such litigation. This Crl. M.C is disposed of as above. V. RAMKUMAR, JUDGE. rv CRL. 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