IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 15537 of 2009(Q) --------------------------------------- SC.NO.737/2009 OF SESSIONS COURT (ADHOC) FAST TRACK-III, PATHANAMTHITTA. .................... PETITIONERS: --------------------- 1. ABHILASH, S/O.MADHAVAN, AGED 23 YEARS, VETTITHURUTHU VEEDU, PANDENKKERRI MURI, EDATHUA VILLAGE, ALAPPUZHA. 2. MADHAVAN, S/O.KUTTY, AGED 58 YEARS, VETTITHURUTHU VEEDU, PANDENKKERRI MURI, EDATHUA VILLAGE, ALAPPUZHA. 3. VINOD @ VINOD KUMAR, S/O.GOPALAN, AGED 27 YEARS, VETTITHURUTHU VEEDU, PADINGARUM MURI, NIRANAM VILLAGE, ALAPPUZHA. 4. GOPALAN @ GOPALAKRISHNAN, AGED 52 YEARS, VETTITHURUTHU VEEDU, PADINGARUM MURI, NIRANAM VILLAGE, ALAPPUZHA. 5. SURESH @ SURESHKUMAR, S/O.MADHAVAN, AGED 26 YEARS, VETTITHURUTHU VEEDU, PANDENKKERRI MURI, EDATHUA VILLAGE, ALAPPUZHA. 6. BIJU @ VISAL KUMAR, S/O.GOPALAN, AGED 25 YEARS, VETTITHURUTHU VEEDU, PADINGARUM MURI, NIRANAM VILLAGE, ALAPPUZHA. 7. AJU @ AJITH, S/O.RAJU, AGED 23 YEARS, PUDUVAL VEEDU, AYAMKUDY, PADINJATTUMURI, NIRANAM VILLAGE, ALAPPUZHA. 8. RATHEESH @ P.G.RATHEESHKUMAR, S/O.GOPI, AGED 26 YEARS, PUDUVAL VEEDU, AYAMKUDY, PADINJATTUMURI, NIRANAM VILLAGE, ALAPPUZHA. BY ADVS. MR.BIJU M.JOHN, MR.P.S.SUJETH. W.P.(C). NO.15537/2009-Q: RESPONDENT: ---------------------- STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. C.K. SURESH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ==================== W.P.(C) No. 15537 of 2009-Q ==================== Dated this the 5th day of June, 2009. JUDGMENT Accused in S.C.No.737/2009 on the file of Sessions Court (Adhoc) Fast Track-III, Pathanamthitta, filed this petition under Article 227 of the Constitution of India for a writ of mandamus or a direction to the State to provide statements of CW23 and CW24 recorded under Section 161 of Code of Criminal Procedure and for a declaration that examination of CW23 and CW24 without serving their statements recorded under Section 161 is null and void. 2. Learned Counsel appearing for the petitioners and Public Prosecutor were heard. 3. Argument of the learned Counsel appearing for the petitioners is that CW23 and CW24 as per the final report submitted by the investigating officer are to be examined to prove the motive and copies of statements of CW23 and CW24 recorded under Section 161 of Code of W.P.(C) No.15537/2009-Q -2- Criminal Procedure were not furnished to the accused and therefore witnesses cannot be examined without furnishing copies of their statements and hence it is to be declared that examination of CW23 and CW24 as PW22 and PW23 is null and void. Argument of the learned Counsel is that investigating officer has not stated before the Court that their statements were not recorded under Section 161 of Code of Criminal Procedure. Ext.P4 marked by the petitioners in the Writ Petition is affidavit of Additional Public Prosecutor, who is conducting the prosecution case. It establish that as per the case diary, statements of CW23 and CW24 were not recorded. If the statement of a witness to be examined by the prosecution is not recorded, a writ of mandamus or direction cannot be issued to furnish a copy of statement as sought for by the petitioners. It is not the law that a witness cannot be examined by the prosecution without recording the statement under Section 161 of Code of Criminal Procedure. It can only be said that if the statement of a witness was recorded by the Police at W.P.(C) No.15537/2009-Q -3- the investigation stage, as provided under Section 161 of Code of Criminal Procedure, copy of that statement shall be furnished to the accused. When Additional Public Prosecutor based on the case diary filed an affidavit that their statements were not recorded under Section 161 of Code of Criminal Procedure, the Writ Petition can only be dismissed. Petitioners are entitled to cross-examine the investigating officer as to why the statements of CW23 and CW24 were not recorded. But examination of the witnesses, even though their statements were not recorded under Section 161 is not for that reason null and void. Learned Counsel for petitioners then submitted that petitioners could not cross-examine PW22 and PW23 and they be permitted to cross-examine them. If petitioners file an application to recall PW22 and PW23 for the purpose of cross-examination, learned Sessions Judge to permit cross- examination. Writ Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE dkr