IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 Crl.MC.No. 1737 of 2009() ------------------------- AGAINST THE ORDER IN CMP.1278/2009 IN CC.517/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... PETITIONER(S): ACCUSED: ----------------------------------------- XAVIOR, S/O.LASSER, AGED 42 YEARS, RESIDING AT ALLAPPILLY HOUSE, NEAR TO TOWN HALL, ALUVA VILLAGE, ALUVA, ERNAKULAM DISTRICT. BY ADV. MR.AJEESH S.BRITE RESPONDENT(S): COMPLAINANT: --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASSISTANT PUBLIC PROSECUTOR, JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, MUVATTUPUZHA. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1737 OF 2009 ------------------------------------------ Dated 1st June 2009 O R D E R Petitioner is the accused in C.C.517/2008 on the file of Judicial First Class Magistrate, Muvattupuzha. Prosecution filed C.M.P.1278/2009 under Section 311 of Code of Criminal Procedure to re-call PW9, the investigation officer contending that when he was examined material aspect was omitted to be brought out and in the interest of justice PW9 is to be re-called and examined. Petitioner filed objection contending that attempt is to prove the confession statement which is part of the recovery mahazar marked and recovery is not legal and the omission cannot be cured by recalling the prosecution witness and therefore petition is to be dismissed. Under Annexure-III order dated 23/5/2009, learned Magistrate allowed the petition and permitted PW9 to be re-called and re-examined. This petition is filed under Section 482 of Code of Criminal Procedure contending that Annexure-III order is to be quashed. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. CRMC 1737/09 2 3. Argument of the learned counsel relying on the decision of this court in Chandran v. State of Kerala (1985 KHC 372) is that learned Magistrate should not have allowed the application and the witness should not have been re-called. 4. On hearing the learned counsel and going through Annexure-III order, I find no reason to interfere with said order. Under Section 311 of Code of Criminal Procedure, learned Magistrate has ample power, if it is found essential for just decision of the case to re-call and examine a witness who has already been examined. Though PW9 was examined and recovery mahazar which contains portion of the statement allegedly made by the accused which led to the recovery was marked, Assistant Public prosecutor did not bring out the exact words allegedly spoken to by the petitioner which led to the recovery. Finding that omission, application was filed which was allowed by the Magistrate. As it is essential for a just decision of the case, learned Magistrate rightly exercised the power under Section 311 of Code of Criminal CRMC 1737/09 3 Procedure. The principles considered by this court in Chandran's case (supra) has no application on the facts of this case. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.