IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 OP(CRL.).NO. 1504 OF 2011(Q) --------------------------------------------- CRRP.41/2010 OF DISTRICT COURT, THALASSERY CC.551/2004 OF J.M.F.C.,KUTHUPARAMBA PETITIONER: ------------------- P. SUNIL, S/O. CHATHU, AGED 33 YEARS, WORKING AS CLERK, RESIDING AT NIVEDYAM, KOLAVALLUR AMSOM DESOM, P.O. THUVAKKUNNU-670693, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): STATE AND ACCUSED ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.K. SANAL KUMAR, S/O. CHANDRAN, AGED 30 YEARS, CHANDROTH MEETHAL HOUSE, CHERUVANCHERY AMSOM, POOVATHUR, P.O. KANNAVAN COLONY, PIN - 670 650, THALASSERY TALUK, KANNUR DISTRICT. 3. C. CHANDRAN, S/O. SWAMIPILLA, AGED 61 YEARS, CHANDROTH MEETHAL HOUSE, CHERUVANCHERY AMSOM, POOVATHUR, P.O. KANNAVAN COLONY, PIN - 670 650, THALASSERY TALUK, KANNUR DISTRICT. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA R1 THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(Crl.) No.1504 of 2011 ==================================== Dated this the 12th day of April, 2011 J U D G M E N T This Original Petition is filed by P.W.4 in C.C.No.551 of 2004 of the court of learned Judicial First Class Magistrate, Koothuparamba. He was examined as witness for prosecution but was not cross-examined by the defence. The witness was discharged. It would appear that in the course of defence evidence the accused cited petitioner as a witness on their side and made a request to summon him under Section 311 of the code of Criminal Procedure Code (for short, “the Code”) Learned Magistrate disallowed that prayer as per order dated 07.10.2010 and closed evidence of defence. That order was challenged by the accused in the court of learned Sessions Judge, Thalassery in Crl. R.P. No.41 of 2010. Learned Sessions Judge as per order dated 31.01.2011 upheld the view of learned Magistrate that petitioner/P.W.4 could be cited as a defence witness but disposed of the revision allowing accused/revision petitioners to file O.P(Crl.) No.1504 of 2011 -: 2 :- application before the learned Magistrate to re-open prosecution evidence and provide opportunity to cross-examine petitioner/P.W.4. That direction of learned Sessions Judge is under challenge in this proceeding at the instance of petitioner/PW4. Learned counsel submitted that since application under Sec.311 of the Code filed by the accused in the course of defence evidence was dismissed there was no question of learned Sessions Judge allowing the accused to recall P.W4/petitioner for cross-examination. It is also submitted that the order dismissing C.M.P. No.4195 of 2010 being interlocutory in character, no revision lay before the learned Sessions Judge. 2. Assuming that no revision would lie as contended, it is within the power of this Court in exercise of its supervisory jurisdiction under Sec.482 of the Code to interfere in the matter in the ends of justice so far as no other provision in the Code prohibits this Court from doing so to ensure that the accused got an opportunity to cross-examine petitioner/P.W.4. Moreover, petitioner has no right to contend that the accused shall not be given an opportunity to cross-examine him. 3. Learned Magistrate is correct in dismissing C.M.P. No.4195 of 2010. For, that application was filed, though labelled O.P(Crl.) No.1504 of 2011 -: 3 :- as one under Sec.311 of the Code to summon petitioner/P.W4 as a defence witness. Learned Sessions Judge has observed so in paragraph 2 of the order in revision. It is therefore that the order of the learned Magistrate was not interfered with. However, learned Sessions Judge gave an opportunity to the accused to request the learned Magistrate to re-open the prosecution evidence and cross-examine petitioner/P.W.4. 4. It is contended by learned counsel that it is sheer inaction and negligence of the accused in not cross-examining petitioner/P.W.4. Learned Sessions Judge after consideration of relevant circumstances has thought it necessary to give the accused an opportunity. I do not find reason to interfere with that order. It is directed that learned Magistrate shall expedite the proceeding and cross-examination of petitioner shall be conducted as early as possible. 5. Learned counsel submitted that case is posted on 19.04.2011 and that non-bialable warrant has been issued to the petitioner. Learned counsel submitted that petitioner is ready and willing to appear in the trial court on 19.04.2011 for cross- examination. In the light of that submission it is directed and warrant of arrest issued to the petitioner will stand in abeyance O.P(Crl.) No.1504 of 2011 -: 4 :- till 19.04.2011. Original Petition is dismissed. But it is directed that the warrant of arrest issued to the petitioner will stand in abeyance till 19.04.2011. Learned Magistrate shall make every endeavour to examine the petitioner on 19.04.2011 itself. THOMAS P. JOSEPH, JUDGE. vsv