IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.MC.No. 5021 of 2008() ------------------------- AGAINST THE ORDER IN CC 349/2008 IN CMP.3185/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... PETITIONER(S): ACCUSED ---------------------- M.K. ABDUL RASHEED, S/O. SHAHUL HAMEED, MALAYANKANDU KUNNUMBRAM, KOTTOOR.P.O, KADACHIRA, KANOOR, CALLING SALESMAN, P.P. CHILLY CHICKEN CENTRE, PUTHIATHERU, KANNUR. BY ADV. SRI.T.P.PANKAJAKSHAN RESPONDENT(S): RESPONDENTS -------------------------- 1. THE FOOD INSPECTOR, KANNUR CIRCLE, KANNUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.5021 of 2008 ------------------------------------- Dated this the 17th day of March, 2009 ORDER As per order passed in Crl.M.Appl.No.922 of 2009, the earlier order passed on 02.01.2009 in this Crl.M.C has been recalled by me. I am proceeding to dispose of this Crl.M.C afresh on merits. 2. The petitioner in this Crl.M.C is the 1st accused in a prosecution under the Prevention of Food Adulteration Act. Altogether there were 2 accused in that case. Trial commenced. The petitioner became not available to proceed with the trial at the stage of 313 examination. The case against the co-accused proceeded. He was found guilty, convicted and sentenced. Against that verdict of guilty, conviction and sentence, an appeal is pending before the appellate court, it is submitted. 3. The case against the petitioner was split up. The petitioner entered appearance later. He filed an application for permission to recall PW1. That application was allowed on terms. The terms were complied with. But when the case came up for trial, the petitioner's counsel was not available and therefore PW1 could not be further cross examined. According to the petitioner's counsel his absence was not intentional and Crl.M.C. No.5021 of 2008 2 was on account of reasons beyond his control. He filed a further application for permission to recall PW1 again. By the impugned order, that request was turned down. The learned Magistrate appears to have taken the view that there was no justification for the petitioner not further cross examining PW1 in spite of opportunity granted. The learned Magistrate appears to have come across another “difficulty” in granting the prayer. Appeal has been preferred by the co-accused. PW1 was examined when both accused were there on the array. The learned Magistrate appears to have felt that as he is obliged to forward the records to the superior courts the further permission to cross examine PW1 would make real difficulties. 4. The learned counsel for the petitioner submits that the impugned order works out denial of justice against the petitioner. There was omission to cross examine the witness on certain specific aspects. That was why request was made for opportunity for further cross examination. That had been allowed. But that opportunity could not be availed on account of the inconvenience of the counsel for the petitioner. The assumed difficulties are of no consequence at all. The learned Magistrate must record the further cross examination on the same Crl.M.C. No.5021 of 2008 3 deposition of PW1 which is to be made use of in the surviving trial against the petitioner. Records are to be forwarded to the appellate court after expeditious disposal of the pending prosecution against the petitioner, submits the learned counsel. 5. I am, in these circumstances, satisfied that the request of the petitioner can be accepted and a further opportunity can be granted to the petitioner to cross examine PW1 on appropriate terms. 6. This Crl.M.C is, in these circumstances, allowed. The petitioner shall be granted a further opportunity to recall and cross examine PW1 on condition that he deposits a further amount of Rs.1,000/- (Rupees One thousand only) as cost before the learned Magistrate within a period of 10 days from this date. If the witness is further cross examined, the learned Magistrate shall note in the deposition that further cross examination is permitted in the surviving trial against the petitioner on the basis of this order passed by this Court. 7. Hand over a copy of this order to the learned counsel for the petitioner today itself. (R.BASANT, JUDGE) rtr/-