IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Crl.MC.No. 3115 of 2009() ------------------------------------ AGAINST THE ORDER DATED 11/08/2009 IN CMP 6398/09 IN CC.843/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... PETITIONER(S): PETITIONER/ DEFACTO COMPLAINANT ------------------------- JAYASREE.S, ANJALI BHAVAN, NELLIPALLY KUTTIKAD PO, KARAKKAD WARD, KADAKKAL VILLAGE, KOTTARAKARA. BY ADVS.MR.PREMCHAND R.NAIR MR.TOJAN J. VATHIKULAM MR.BEPIN PAUL RESPONDENT(S): COUNTER PETITIONER /ACCUSED 1 TO 3 & STATE ------------------------- 1. ASHOK KUMAR S/O.SADASHIVAN, MARUTHIVILA PUTHEN VEEDU PANGALAKADU, PANGALUKADU MURI,KUMIL VILLAGE KOTTARAKARA. 2. VASANTHY, D/O.JANAKI MARUTHIVILA PUTHEN VEEDU PANGALAKADU, PANGALUKADU MURI,KUMIL VILLAGE KOTTARAKARA. 3. VASANTHAKUMARY, D/O.VASANTHY TUSHARA, PANGODUMURI, KUMIL VILLAGE,KOTTARAKARA. 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 TO R3 BY ADV. MR.ALEXANDER GEORGE R4 BY PUBLIC PROSECUTOR MR.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3115 OF 2009 ------------------------------------------ Dated 18th November 2009 O R D E R Assistant Public Prosecutor filed C.M.P.6398/2009 in C.C.843/2002 before Judicial First Class Magistrate-II, Kottarakara under Section 311 of Code of Criminal Procedure to re-open the case to examine CW13. It was dismissed by Annexure-A3 order. De facto complainant filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure- A3 order. 2. Learned counsel appearing for the petitioner, first respondent/first accused and learned Public Prosecutor were heard. 3. Annexure-AI final report shows that investigating officers are Cws.12 and 13. CW12 is no more. Therefore, learned Magistrate could have examined only CW13. Annexure-A3 order itself shows that investigating officer was not examined. It is in such circumstances, C.M.P.6398/2009 was filed by the Prosecutor to re-open the case. Learned Magistrate Crmc 3115/09 2 dismissed the petition on the ground that repeated steps were issued and coercive steps were taken for the last two years and still CW13 did not appear. 4. Learned Public Prosecutor was directed to ascertain whether CW13 is in service and why he did not appear before the Magistrate. Learned Public Prosecutor on instructions submitted that CW13 is now working as Deputy Superintendent of Police, Special Branch, Thiruvananthapuram and he did not appear before the learned Magistrate as he did not get any summons to appear. Learned Public Prosecutor also submitted that CW13 reported to the Public Prosecutor that he would appear on any day before the Magistrate as directed by this court. Learned Public Prosecutor submitted that even without a summons CW13 would appear before the learned Magistrate. In such circumstances, Annexure-A3 order is quashed. Judicial First Class Magistrate-II, Kottarakara is directed to re-open the evidence and examine CW13. CW13 is directed to appear before the Judicial First Class Magistrate-II, Kottarakara on 4/12/2009. Learned Magistrate is directed to examine him on that day. Accused are also directed to appear on Crmc 3115/09 3 that day so that examination of the witness could be completed on the same day. Petition is disposed. Issue a copy of this order to the Public Prosecutor. M.SASIDHARAN NAMBIAR, JUDGE. uj.