IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 Crl.MC.No. 2238 of 2010() ------------------------- AGAINST THE ORDER DATED 28/01/2010 IN CMP 538/2010 IN CC.148/2008 of J.F.C.M, KUNNAMANGALAM .................... PETITIONER: ACCUSED ---------------------- AJAYA GHOSH, S/O.A.V.VASU AGED 42/07, VARKALA HOUSE, CHATHAMANGALAM. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ANEISH RAVINDRA SRI.ARUN KRISHNA DHAN RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.KAMAPPU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ------------------------------------- Crl.M.C.No.2238 of 2010 -------------------------------------- Dated this the 29th day of June, 2010 ORDER Heard both sides. Petitioner who is the sole accused in C.C.No.148/2008 on the file of the Judicial Magistrate of the First Class, Kunnamangalam for offences punishable under Sections 354 & 506(ii) of I.P.C. filed C.M.P.No.538/2010 before the court below under Section 311 of Code of Criminal Procedure praying to re-call PW.1 who was examined in chief on 19/8/2009 and who was not cross-examined by the defence counsel as he was held up somewhere and his junior was unwilling to conduct the cross-examination. The said petition dismissed as per Annexure-I order dated 28/1/2010 (the date of the order is wrongly shown as 19/8/2009 instead of 28/1/2010 which is a mistake as has been clarified by the learned Magistrate). The learned Magistrate has observed that the application was part of a dilatory tactics and that opportunities had been given on earlier postings to cross- examine PW.1. According to the petitioner three of the adjournments earlier were due to the fact that there was no Crl.M.C.No.2238/2010 : 2 : sitting before the court below. Whatever may be the reason for not cross-examining PW1 earlier, the fact remains that PW.1 who is the main prosecution witness in the case was not cross-examined. It is also a fact that the petitioner applied for an opportunity only at the fag end of the trial. Hence I am inclined to put the petitioner on terms. In case the petitioner deposits before the court below a sum of Rupees one thousand by way of cost payable to the State within two weeks from today the petitioner shall be entitled to cross-examine PW.1 whose witness bata shall also burne by the petitioner. Annexure-I order is accordingly set aside. The petitioner is given an opportunity to cross-examine PW.1. This Criminal M.C. is allowed as above. V.RAMKUMAR, JUDGE skj