IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.MC.No. 1022 of 2009() ------------------------- AGAINST THE ORDER DATED 16/02/2009 IN CMP.585/2009 IN CC.189/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER(S): IST ACCUSED: ----------------------------------------------- ANIL P.PAUL, S/O.PAULOSE, AGED 48, PAINADATH HOUSE, ANGAMALY VILLAGE, ALUVA TALUK. BY ADV. MR.P.K.SOYUZ RESPONDENT(S): COMPLAINANT: --------------------------------------------------- 1. M.P.KURIAKOSE, S/O.M.P.KURIAN, MYLALEYIL HOUSE, KIDANGOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.MR.JAISON JOSEPH R2 BY PUBLIC PROSECUTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1022 OF 2009 ------------------------------------------ Dated 4th August 2009 O R D E R Petitioner is the first accused and first respondent the complainant in C.C.189/2005 on the file of Judicial First Class Magistrate-II, Aluva. Petitioner filed Annexure-III petition, at the defence stage to sent Annexure-II letter marked as Ext.P4 at the time of examination of first respondent, to an expert to compare the handwriting seen therein with the admitted handwriting of the petitioner. Under Annexure-IV order learned Magistrate closed the petition recording that the question whether opinion of an expert is necessary or not, will be considered along with the case later, if the court finds that decision of the expert is necessary. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-IV order contending that question whether Annexure-II letter was written by the petitioner or not is a very relevant and crucial fact which would tilt the decision of the case and for that CRMC 1022/09 2 purpose report of the expert is necessary and therefore, learned Magistrate was not justified in not allowing the application. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. On hearing the learned counsel, it is clear that question whether Annexure-II (Ext.P4) is a letter written by the petitioner or not, is a crucial aspect to be decided in the case. Unfortunately, learned Magistrate did not consider the question whether Ext.P4 is to be sent to the expert or not. On the other hand, the decision is postponed observing that it will be considered at a later stage. When the petition is filed at the defence stage, it is not known at what stage the question is to be decided by the Magistrate. The question as in what manner is to be proved is to be decided by the accused. Neither the court nor the complainant is entitled to command in what manner he has to prove his case. Report of the expert is definitely one of the mode. In such circumstances, Annexure-IV order is quashed. Learned Magistrate is directed to pass appropriate order in C.M.P.585/2009 in accordance with law, after hearing CRMC 1022/09 3 the petitioner and first respondent and considering the question whether report of an expert is necessary or not. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.