IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Crl.MC.No. 1860 of 2011() ---------------------------------- CRL.M.P.NO.81/2011 IN SC.346/2009 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGOD .................... PETITIONER(S): ----------------------- 1. SUDHAKARAN, AGED 37 YEARS, S/O. BAMBAN, RESIDING AT ADUKKAM, KEEKKAN VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. CHANDRAN @ PAIKKA CHANDRAN, S/O. JANARDHANAN, RESIDING AT KIZHAKKEKKARA, KEEKKAN VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 3. BALAKRISHNAN, S/O. KUNHIRAMAN, KOLATHINKAL HOUSE, POOCHAKKAD, KEEKKAN VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SMT.T.SUDHAMANI RESPONDENT: ------------------------- THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.V.MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1860 of 2011() APPENDIX PETITIONERS ANNEXURES: ANNEXURE-1: A TRUE COPY OF THE PETITION DATED 7.10.10 ANNEXURE-II: A TRUE COPY OF THE PETITION UNDER SECTION 311 CR.P.C DATED 12.1.2011 ANNEXURE-III: A CERTIFIED COPY OF THE ORDER DATED 31.5.11 IN CRL.M.P.NO. 81/11 RESPONDENTS ANNEXURES: NIL //TRUE COPY/ / P.A.TO JUDGE MNS THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1860 of 2011 -------------------------------------- Dated this the 21st day of June, 2011. ORDER Public Prosecutor takes notice for respondent. 2. Petitioners are accused 1, 6 and 8 in S.C.No.346 of 2009 of the court of learned Additional Sessions Judge (Adhoc-III), Kasaragod for offences punishable under Sections 143, 147, 148, 341, 324, 326 and 308 read with Section 149 of the Indian Penal Code. Examination of PW7 was over by 26.11.2010 and thereafter the case was posted for examination of petitioners and other accused under Section 313 of the Code of Criminal Procedure on 22.12.2010. The case was then posted on 12.01.2011 for defence offence. On that day petitioners filed application to recall PWs 2 to 7. That application was dismissed by learned Additional Sessions Judge by Annexure-III, order dated 31.05.2011. It is submitted that petitioners had filed application to issue stop memo to the prosecution witnesses on the ground that the connected case – C.C.No.607 of 2009 which was pending before learned Judicial First Class Magistrate-II, Hosdurg was transferred to the court of learned Additional Sessions Judge as per the order of learned Sessions Judge, Kasaragod and that case being connected with S.C.No.346 of 2009, the cases are to be disposed of simultaneously. It is contended that rejecting that request prosecution witnesses Crl.MC No.1860/2011 2 were examined. Learned counsel requests that petitioners and other accused may be given an opportunity to cross examine PWs 2 to 7. It is also pointed out that since the connected case was transferred to the court of learned Additional Sessions Judge and numbered as S.C.No.108 of 2011 both the cases are to be disposed of simultaneously. I have heard learned Public Prosecutor also. 3. I called for information from the court of learned Additional Sessions Judge through the Registrar (Judicial). It is reported that S.C.No.346 of 2009 (in which petitioners and others are accused) and S.C.No.108 of 2011 (C.C.No. 607 of 2009 of the court of learned Judicial First Class Magistrate-II, Hosdurg transferred to the court of learned Additional Sessions Judge and renumbered as such) are case and counter case but, in S.C.No.346 of 2009 evidence was closed while in S.C.No.108 of 2011 steps are not complete. 4. Since it is reported that both the cases are connected and arise out of the same incident it is appropriate that both cases are tried and disposed of simultaneously though, by separate judgments and recording evidence separately in each case. It is true that in S.C.No.346 of 2009 evidence is over but, it must await recording of evidence in S.C.No.108 of 2011. If the cases are disposed of separately, possibility of prejudice might occur. 5. Now coming to the request of petitioner for recalling PWs 2 to 7 for cross examination is concerned, learned Sessions Judge has observed that though counsel for petitioners and other accused was bodily present in court Crl.MC No.1860/2011 3 he has not chosen to cross examine witnesses and petitioners and other accused did not take the opportunity to cross examine the witnesses. That conduct does not appear to me proper and conducive for the progress of trial. It is not as if counsel could have refused to cross examine and at a later point of time filed application under Section 311 of the Code of Criminal Procedure. Nobody could be under the impression that the superior court would show indulgence and grant time to cross examine the witnesses. However I do not intend to deny an opportunity to the petitioners and other accused to cross examine PWs 2 to 7 but they have to pay heavy cost. In the circumstances I am inclined to permit them to cross examine PWs 2 to 7 on condition that each of the witnesses i paid cost of `.1,000/-. On deposit of cost as aforesaid learned Additional Sessions Judge shall issue summons to PWs 2 to 7 for their appearance. Resultantly this Criminal Miscellaneous Case is disposed of in the following lines: i. Annexure-III, order is set aside and Crl.M.P.No.81 of 2011 in S.C.No.346 of 2009 of the court of learned Additional Sessions Judge (Adhoc- III), Kasaragod will stand allowed on condition that petitioners deposited in the court of learned Additional Sessions Judge cost payable to PWs 2 to 7 at the Crl.MC No.1860/2011 4 rate of `.1,000/-(Rupees one thousand only) each. On such deposit, learned Additional Sessions Judge shall issue summons to PWs 2 to 7 for their appearance in court. ii. Learned Additional Sessions Judge is directed to keep the disposal of S.C.No.346 of 2009 in abeyance until trial of S.C.No.108 of 2011 is over so that both the cases could be disposed of simultaneously. iii. Learned Additional Sessions Judge may take necessary steps for commencing trial in S.C.No.108 of 2011 at the earliest since in S.C.No.346 of 2009 prosecution witnesses are already examined. THOMAS P.JOSEPH, Judge. cks