IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 Crl.MC.No. 3561 of 2011() ------------------------- CMP.2057/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... PETITIONER(S): PETITIONER:CW6: --------------------------------------------------- SUBRAMANIYANACHARI, S/O.CHELLAPPANACHARI, SANTHOSH BHAVAN, AYANTHICHIRA, KONNIYOORMURY, PERUMKULAM VILLAGE, NEDUMANGAD TALUK. BY ADV. SRI.M.R.SARIN PANICKER, SRI.SHAJIN S.HAMEED. RESPONDENT(S): STATE: --------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.3561/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE FINAL REPORT IN CRIME NO.202/03. ANNEX.B: COPY OF FINAL REPORT SUBMITTED AFTER FURTHER INVESTIGATION IN CRIME NO.202/03 OF MALAYINKEEZHU POLICE STATION. ANNEX.C: COPY OF CMP NO.2057/10 OF JFCM, KATTAKADA. ANNEX.D: COPY OF THE ORDER DTD. 21/03/2010 IN CMP. NO.2057/2010 OF JFCM, KATTAKADA. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 3561 OF 2011 (C) ------------------------------------------ Dated this the 10th day of November, 2011 O R D E R The petitioner is CW 6 in C.C. No:130/06, which is now pending before Judicial First Class Magistrate, Kattakada. The grievance voiced by the petitioner is that the statement recorded by the DySP (Crime Detachment), CW 9, was not produced before the Court. Whereas, the statement which is now available in Court or in the case file is only the statement recorded by the Circle Inspector of Police. According to him, no such statement was given by him in the course of investigation. The statement recorded by the Police can be used only to contradict the witness. It cannot be used for corroboration. What the witness has to depose before the Court is the statement of facts which is known to him. No doubt, if the statement given by him in Court is against the prosecution, he may be cross examined by the Prosecutor. Similarly, if the statement given by him is contradictory to any statement recorded by the Police, Crl. M.C. No: 3561 OF 2011 (C) 2 defence may cross examine him by using such statement. A witness who has already decided to depose against the prosecution may also, with dubious design, try to misguide the Court stating that his statement was not recorded by the Investigating Officer correctly, so as to enable the defence to put forward a plea that the statement recorded by the police was false. Such mischievous tactics may be adopted by a witness advised by an indigenous brain. But, it is for the Court to find whether such allegations are true. Simply because witness, in advance, files a petition to the Court stating that what has been recorded by the Police is not true, the Court cannot, again, directed fresh statement to be recorded by the Police. Here, the DySP, who was also stated to have conducted investigation, is cited as CW 9. If any statement of CW 6, recorded by the DySP, was not produced that can certainly be found out by the learned Magistrate while examining CW 9. The learned Magistrate will certainly get clarification of CW 9, if such ommission did Crl. M.C. No: 3561 OF 2011 (C) 3 occur, and would do whatever is legally permissible for the proper and fair trial. I find no illegallity or irregularity or incorrectness in the Order passed by the learned Magistrate. No further direction is required to be issued in this case at his stage. This petition is disposed of as stated above. N.K. BALAKRISHNAN, JUDGE jjj