IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.MC.No. 2814 of 2009() ------------------------------------ AGAINST THE ORDER DATED 12/08/2009 IN CMP 6713/2009 IN CC.490/2004 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... PETITIONERS/ A1 AND A2: ----------------------------------------- 1. SAJI @ SULAIMAN, AGED 38, (A1) S/O. MUHAMMED MERAAN, MUZHUTHIRIYATHU PUTHEN VEETIL, KARICHIRA WARD, PALLIPURAM VILLAGE. 2. NIZAR, AGED 31, (A2) S/O. ABDUL NIZAR., V.K.HOUSE, MEVARKAL DESOM, ALAMCODE VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER RESPONDENT: ------------------------- THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM SRI. S.U. NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------- Crl. M.C. No.2814 of 2009 ------------------------------------ Dated this the 25th day of August, 2009 O R D E R Petitioners are the accused in CC No.490/2004 on the file of Judicial First Class Magistrate Court-II, Attingal. Under Annexure C order, the learned Magistrate exercising powers under Section 311 of Code of Criminal Procedure permitted the prosecution to examine CWs 8,9,10,12,13,16 and 17. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order. 2. The learned counsel appearing for the petitioners and the learned Public Prosecutor were heard. 3. The argument of the learned counsel for the petitioners is that no cogent reason is given in Annexure C order to examine the witnesses and the power under Section 311 of Code of Criminal Procedure cannot be invoked to fill up the lacuna in the prosecution case. Relying on the decision of Apex Court in Zhara Habibulla Sheikh and another Vs. State of Gujarath and others[2004(4) SCC 158] and Jitendra Nath Bose Vs. The State [1991 Crl. L.J 922] it was argued that the Crl. M.C. No.2814/ 2009 2 order is not sustainable. 4. Section 311 of the Code of Criminal Procedure confers power on the Magistrate to play an active role during trial. It is the function of the Magistrate to arrive at the truth. When for a just and proper decision of the case, Magistrate finds that a witness is to be examined or to be recalled and examined, Magistrate can exercise that power, at any time before pronouncing the judgment. Though the learned counsel for the petitioner argued that after examination of the accused under Section 313 of the Code of Criminal Procedure, when the case was posted for arguments, a petition under Section 311 was earlier filed and it was allowed and witnesses were recalled and examined, and this is the second application and the learned Magistrate should not have allowed that application and permitted to fill up the lacuna, fact that once the power under Section 311 was exercised by the learned Magistrate does not mean that thereafter the Magistrate cannot exercise the powers. Annexure C order shows that the learned Magistrate has applied his mind and was satisfied that for a just decision of the case, Crl. M.C. No.2814/ 2009 3 witnesses shown in the order are to be examined. The powers under Section 311 was not exercised to fill up any lacuna as claimed by petitioners. It was exercised to arrive at a just decision of the case. If the bye-product of the just decision may be the filling up of lacuna, it is not a ground to interfere Annexure C order as sought for. The petition is dismissed. M. SASIDHARAN NAMBIAR JUDGE scm