IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 Crl.MC.No. 436 of 2006() ------------------------ CC.378/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... PETITIONER: ACCUSED ------------------- 1. MOOKAYI PRADEEPAN, S/O.CHATHUKUTTY, AGED 45 YEARS, COOLIE, RESIDING AT KOMBIL HOUSE, MANGATTIDAM AMSOM, KURUMBUKKAL DESOM, P.O.NIRMALAGIRI, THALASSERY TALUK, KANNUR DISTRICT 2. MOOKAYI SAJEEVAN, S/O.CHATHUKUTTY, AGED 35 YEARS, AGRICULTURIST, RESIDING AT KOMBIL HOUSE, MANGATTIDAM AMSOM, KURUMBUKKAL DESOM, P.O.NIRMALAGIRI, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENTS: STATE ------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NOS.713/06 AND 994/06 IN CRL.M.C.436/06 DISMISSED 30.7.2008 SD/- M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.436 OF 2006 ----------------------------------------------------- DATED THIS THE 30th DAY OF JULY, 2008 O R D E R Petitioners 1 and 2 herein are accused Nos.1 and 2 respectively in C.C.No.378/2002 pending on the file of Judicial First Class Magistrate's Court, Kuthuparamba. The case alleged against the petitioners and other accused is pending before the concerned Magistrate's Court for the offences punishable under Sections 143, 147, 148, 447, 427 and 506(ii) read with Section 149 of Indian Penal Code. It is alleged in this petition that the prosecution cited 7 witnesses as per the memo of evidence filed along with the charge sheet. Some of the witnesses mentioned therein were examined as PWs 1 to 5 and given up two witnesses mentioned therein. Thereafter, the prosecution has filed a petition as Crl.M.P.No.3185/05 for examining the Advocate- Commissioner in a civil case, O.S.No.120/02 on the file of Munsiff's Court, Kuthuparamba without furnishing an additional witness list. Copy of that petition is produced as Annexure A. The petitioners herein filed a counter opposing that petition, copy CRL.M.C.No.436/06 -2- of which is produced as Annexure B. It was contended that no reason whatsoever has been stated by the prosecution for not including the name of the said witness in the witness list who was not questioned by the Investigating Officer earlier. It was also stated that the said Commissioner's report and plan were filed by an ex parte Commissioner and the same were remitted by the civil court which is not finalised. Further, the Investigating Officer has furnished the scene mahazar witnesses who are available. Annexure C is the true copy of the order in Crl.M.P.No.3185/05 in C.C.No.378/02 passed by the learned Magistrate which is passed without considering any of the contentions raised by the petitioners herein in their counter statement, Annexure B. In these circumstances, this petition is filed by the petitioners 1 and 2/accused 1 and 2 in C.C.No.378/02 to quash the order of the learned Magistrate in Crl.M.P.No.3185/05 dated 18.1.2006, Annexure C. 2. Heard the learned counsel appearing for the petitioners and also the learned Public Prosecutor. 3. On a perusal of the records, it is evident that the learned Magistrate has passed the impugned order, Annexure C without applying the mind and without considering and answering the CRL.M.C.No.436/06 -3- contentions raised by the petitioners herein who are accused 1 and 2 in C.C.No.378/02. The duty of the prosecution is to produce the evidence before the court to find out the truth to meet the ends of justice and not to gather evidence somehow or other with a view to convict the alleged offenders. The learned Magistrate has not considered the stipulations under Section 242 of Cr.P.C. Thus, I find that the procedure followed by the concerned Magistrate is not proper and fair. It is admitted by the learned Public Prosecutor and as stated by the learned counsel for the petitioners that the said witness, Advocate-Commissioner was already examined before the concerned Magistrate's Court in chief on 15.2.2006. This petition is filed before this Court under Section 482 of Cr.P.C. on 14.2.2006 along with a stay petition, that is, Crl.M.A.713/06. In that petition, this Court has passed an order on 15.2.2006 as follows: “Notice. Trial of the Advocate Commissioner will stand adjourned for a period of two weeks, in case he is not already examined. It is made clear that if the witnesses are already examined, the stay order will not operate.” According to the learned counsel for the petitioners, the said order passed by this Court on 15.2.2006 was orally communicated to the concerned counsel over telephone and at that time, the chief examination was going on. In the light of the interim order passed by CRL.M.C.No.436/06 -4- this Court, that witness was not cross-examined by the concerned counsel. But the learned Magistrate recorded that “no cross” and posted the case for 313 questioning. 4. In these circumstances, this Court is compelled to pass an order giving liberty to the petitioners 1 and 2 in this petition who are accused Nos.1 and 2 in C.C.No.378/02 pending on the file of Judicial First Class Magistrate's Court, Kuthuparamba to cross-examine the Advocate-Commissioner. The contentions raised by the petitioners in this petition are left open. The Crl.M.C. is disposed of accordingly. M.C.HARI RANI, JUDGE. dsn