IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 Crl.MC.No. 285 of 2008() ------------------------ AGAINST THE ORDER DATED 15/01/2008 IN CMP.107/2008 IN CC.344/2005 of JUDL. MAGISTRATE OF FIRST CLASS, PEERUMEDU .................... PETITIONER: ACCUSED: 1. RAJENDRA PRASAD, MANAGER, TYFORD ESTATE, ELAPPARA. 2. SOUNDER RAJAN, ASST. MANAGER, TYFORD ESTATE, ELAPPARA. 3. PERIYASWAMI, S/O.SHANMUKHAN, FAIRFIELD DIVISION LAYAM, TYFORD ESTATE, ELAPPARA VILLAGE. 4. RAJU @ YOHANNAN, S/O. THOMAS, PAYYAPPALLIL VEEDU, FAIRFIELD DIV. PUTHUVAL, TYFORD ESTATE, ELAPPARA VILLAGE. 5. SUBBAYYA, S/O.MASSANAM, FAIRFIELD DIV, LINE, TYFORD ESTATE, ELAPPARA VILLAGE. 6. PHILIP, S/O.SUBBAYYA, FAIRFIELD DIV, LINE, ELAPPARA VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENTS: COMPLAINANT: 1. THE STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SARASAMMA, W/O.THAMPY, GURUMANDIRAM VEEDU, ELAPPARA VILLAGE & KARA. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.285 of 2008 = = = = = = = = = = = = = = Dated this the 30th day of January, 2008 ORDER The petitioners are the accused in C.C.No.344/2005 pending before the J.F.C.M-I, Peerumedu, arising out of a private complaint. As per Annexure I order dated 23.07.07 in Crl.R.P.No.2708 of 2007, even though this Court did not allow the request of the petitioners to club this case along with C.CNo.217 of 2004 before the same court, arising out of a police report, this Court however, permitted to confront the common witnesses with their own statements in the case in which they were examined first in recognition of the right of the defence under Section 145 of the Evidence Act. Thereafter, the trial of C.C.No.217/2004 was conducted first. Subsequently, the present case namely C.C.No.344/2005 was taken up for trial. One 'Reji Ben' who was examined as PW5 in C.C.No.217/2004 was examined by the defence as DW5 in C.C.No.344 of 2005. 2. The grievance of the petitioners is that, they omitted to confront the said witness, Reji Ben with certain documents, while DW5 was examined and that necessitated the present Crl.M.C.No. 285 of 2008 2 application filed as CMP No.107/2008 to recall the said witness so as to confront him with the documents. The learned Magistrate dismissed the said petition as per Annexure II order dated 15.01.08, holding that the power to permit the above request under Section 311 Cr.P.C is discretionary and no grounds have been made out for recalling such witness. 3. After hearing both sides, I am not inclined to agree with the learned Magistrate. No doubt, the said 'Reji Ben' was examined as DW5. But if the defence had omitted to confront the said witness with certain documents, which might substantiate their defence, there was no need to shut out that evidence on the ground that power under Section 311 Cr.P.C is discretionary. Accordingly, the impugned order, dated 15.01.08 passed by the J.F.C.M-I, Peerumedu, is set aside and the petitioners are permitted to recall DW5 and examine the said witness for the purpose of confronting him with the documents. The petitioners shall be present before the Crl.M.C.No. 285 of 2008 3 lower court on the next posting date itself and DW5 shall be permitted to be recalled and further examined for the purpose of confronting him with the documents which the petitioners wanted to. The trial of the case shall be completed without any further delay and both cases shall be disposed of in accordance with law. This Crl.M.C is disposed of as above. V. RAMKUMAR, JUDGE sj