IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Crl.MC.No. 664 of 2010 -------------------------------- [AGAINST THE ORDER DATED 05/02/2010 IN C.M.P.NO.498/2010 IN CC.NO.588/2005 OF JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG] .................... PETITIONER/PETITIONER/COMPLAINANT: ------------------------------------------------------------- DR.T.V.PADMANABHAN, S/O.T.RAMAN, VELLARIKUNDU,NOW RESIDING AT LAKSHMI NAGAR, KANHANGAD, HOSDURG TALUK. BY ADV. MR.M.GOPIKRISHNAN NAMBIAR. RESPONDENTS/RESPONDENTS/ACCUSED 1 TO 10 & STATE: ---------------------------------------------------------------------------------------- 1. DR.P.V.NALINI, AGED 50 YEARS, D/O.AMBILERI RAMAN, VELLARIKUNDU, PARAPPA VILLAGE, HOSDURG TALUK. 2. RAMANI, AGED 45 YEARS, W/O.P.V.BHASKARAN, RESIDING AT KOORANKUNDU, PARAPPA VILLAGE, HODURG TALUK. 3. P.V.BHASKARAN, AGED 55 YEARS, S/O.AMBOOKKAN, KOORANKUNDU, PARAPPA VILLAGE. 4. MINI, AGED 40 YEARS, W/O.K.V.RAVEENDRAN @ GOPI, KOORANKUNDU, PLACHIKKARA P.O. 5. K.V.RAVEENDRAN @ GOPI, AGED 47 YEARS, S/O.GOVINDA PODUVAL, RESIDING AT KOORANKUNDU, PLACHIKKARA. 6. P.K.NARAYANI, AGED ABOUT 22 YEARS, D/O AMBADI, KANNAMKAI, PILICODE, CHERUVATHUR VILLAGE. CRL.M.C. NO. 664/2010: 7. VIJAYALAKSHMI, AGED 54 YEARS, W/O RADHAKRISHNAN, KADAMBAKALLU, PILICODE, CHERUVATHUR VILLAGE. 8. SOUMINI, AGED 46 YEARS, RESIDING AT KADAMBAKALLU, PILICODE, CHERUVATHUR VILLAGE, HOSDURG TALUK. 9. KARTHIYAYANI, W/O.RAJU, CHERUVATHUR KOVVAL, CHERUVATHUR P.O. 10. THANKAMMA, AGED 40 YEARS, W/O THANKAPPAN, VATTAKUNNEL, PATHIKKARA P.O., HOSDURG TALUK. 11. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R.11 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.664 OF 2010 ------------------------------------------ Dated 1st March 2010 O R D E R Petitioner is the complainant in C.C.588/2005 on the file of Judicial First Class Magistrate-II, Hosdurg. A protest complaint was filed, when police submitted a refer report. Learned Magistrate has taken cognizance for the offences under Sections 143, 147, 447, 448, 341 and 457 read with Section 149 of Indian Penal Code. Petitioner was examined as PW1. Though case was posted for examination of witnesses, no witness was present and learned Magistrate closed the evidence on 22/1/2010 and posted the case for questioning the accused to 29/1/2010. On that day it was adjourned to 5/2/2010. On 5/2/2010 petitioner filed Crmc 664/10 2 Annexure-II petition. (C.M.P.498/2010) under Section 311 of Code of Criminal Procedure for permission to examine the witnesses. Petition was dismissed by Annexure-III order. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure- III order and to direct the learned Magistrate to examine the witnesses shown in the complaint. 2. learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure-III order shows that when the case was posted for examination of witnesses, after petitioner was examined as PW1 to 15/1/2010, no witness was present. Hence evidence was closed. Though learned counsel appearing for the petitioner relying Crmc 664/10 3 on Annexure-II petition submitted that one of the witnesses was present in the forenoon session but due to his illness he was not present when the case was called after lunch, there is no material to show that any such witness was present before the court on 22/1/2010. On the other hand Annexure-III order shows that no witness was present. If a witness was present on 22/1/2010 and due to his illness he could not be examined and evidence was closed, one would expect the petitioner to approach the learned Magistrate either on the same day or on the next day seeking permission to examine the witness. Even though evidence was closed and the case was posted for questioning the accused on 29/1/2010, no petition was filed even on that day. As accused could not be questioned on Crmc 664/10 4 29/1/2010, case was adjourned to 5/2/2010. On that day Annexure-II petition was filed. Annexure-II petition also does not disclose why the other witnesses were not present on 22/1/2010. 4. Being a private complaint, it is for the petitioner to make available the witness. If the case is that witnesses will not appear without summons, it is for him to seek issuance of summons from the court. Petitioner did not do any of these things. It is in such circumstances, learned Magistrate did not grant permission to examine the witnesses invoking the powers under Section 311 of Code of Criminal Procedure. I find no illegality in Annexure-III order. But in view of the persuasive submission of the learned counsel that an opportunity is to be granted Crmc 664/10 5 to examine the witnesses, Judicial First Class Magistrate-II, Hosdurg is directed to examine the witnesses on the following conditions. Petitioner shall deposit Rs.5,000/- (Rupees five thousand only) as costs. Petitioner shall make available the witnesses, if any, to be examined on 10/3/2010. If the deposit is made and witnesses are made available on 10/3/2010, Magistrate to permit the petitioner to examine the witnesses and proceed with the case thereafter, in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.