IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 Crl.MC.No. 1756 of 2006 ------------------------- C.C. NO. 494 OF 1998 OF THE J.F.C.M. SASTHAMCOTTOA PETITIONER/ DEFACTO COMPLAINANT ---------------------------------- BIJIMOLE.A.S., D/O.SULOCHANA, ANIL SADANAM, PULIYILA CHERRY, PALLIMON, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): STATE/ACCUSED ---------------------------- 1. SUB-INSPECTOR OF POLICE, SASTHAMCOTTA, KOLLAM REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAJAN, THENGUVILA THEKKATHIL, MUTHUVILACODE, SASTHAMCOTTA, KOLLAM. BY PUBLIC PROSECUTOR MR. JAI GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO. 3493 OF 2006 IN CRL.M.C. NO. 3493/2006 DISMISSED. SD/-M.C. HARI RANI, JUDGE 24-10-208 TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 1756 of 2006 ======================== Dated this the 24th day of October 2008 ORDER The petitioner herein is the defacto complainant in C.C.No.494/1998 pending before the Court of Judicial First Class Magistrate, Sasthamcotta which was registered under Section 498A read with Section 34 of the Indian Penal Code. The 2nd respondent is the husband of the petitioner herein and the first accused before the lower court. It is stated in this petition that the petitioner was examined before the trial court as PW1 on 15- 12-2004 and was cross-examined by the defence. Four other witnesses were also examined on the side of the prosecution and they were also cross examined by the defence. The second respondent herein/first accused was questioned under Section 313 of the Code of Criminal Procedure and the case was posted for defence evidence. Subsequently, when the case was posted for hearing, the second respondent filed a petition under Section CRMC.1756/2006 -2- 311 of the Code of Criminal procedure to reopen the case for the evidence of respondents, which was allowed by the trial court. Certified copy of that petition and the order thereon in C.M.P.No.1780/2006 dated 25-5-2006 is produced as Anenxure-1. In pursuance of that order, the respondent filed the witness list, true copy of which is produced as Annexure-II wherein the defence sought to examine the petitioner as first witness. Hence, this petition is filed by the petitioner before this Court to set aside the order in C.M.P.No.1780/2006 in C.C.No.494/1998 dated 25-5-2006. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. It is submitted by the learned counsel for the petitioner that the petitioner herein, who is the defacto complainant before the trial court in the case registered under Section 498A read with Section 34 of I.P.C., was examined as PW1 and was vigorously cross examined by the respondent. Subsequently, C.M.P.No.1780/06 was filed under Section 311 of Cr.P.C. at the instance of the 2nd respondent herein, who is the husband of the defacto complainant, without any justifiable ground for reopening the evidence and to examine the petitioner CRMC.1756/2006 -3- as the first witness with the intention to harass the petitioner. Annexure-1 is the certified copy of the affidavit, petition and the order in C.M.P.No.1780/2006 dated 25-5-2006, which reads as follows: “Heard. This application remain unopposed. Hence allowed. Issue summons. Take steps today itself.” In pursuance of that order, the witness list, copy of which is produced as Annexure-II, has been filed by the 2nd respondent on 7.6.2006, which would reveal that the first witness cited therein is the petitioner/defacto complainant in C.C.No.494/1998, who was already examined as PW1 and was cross examined by the defence. Going through the averments in the affidavit, no reason whatsoever has been stated either to recall PW1 or to re-examine her who was already examined and cross examined on the defence side. The order of the trial court also did not reveal any reason either for examining the defacto complainant again, who was already examined as PW1 on the prosecution side or to re-call the witness at the instance of the defence. There is nothing on the order to reveal that the learned CRMC.1756/2006 -4- Magistrate was convinced that her evidence as an additional witness on the side of defence is essential for the just decision of the case. Therefore, I find that the learned Magistrate without applying his mind and without considering the ingredients and the implications in Section 311 Cr.P.C., allowed the petition inadvertently. Hence, the prayer in this petition is allowed in part and the order dated 25-5-2006 in C.M.P.No.1786/2006 in C.C.No.494/1998 for the examination of the first witness/Bijimole, the defacto complainant on the side of the defence is set aside and the learned Magistrate is directed to proceed with the case after summoning the additional witnesses shown in the witness list dated 7-6-2006 as Nos.2 and 3 and dispose of the case at the earliest, at any rate, within six months from the date of receipt of a copy of this order. The Crl.M.C.is allowed in part. M.C. HARI RANI JUDGE ks.