IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.MC.No. 4930 of 2008() ---------------------------------------- (AGAINST THE ORDER DTD. 18/11/2008 PASSED BY THE SESSIONS COURT, THIRUVANANTHAPURAM IN CRL.R.P.NO.98/2008) PETITIONER(S): PETITIONER: --------------------------------------------- DEVAPRAKASH, KALLADAPARAMBIL HOUSE, KULAMAVU, IDUKKI. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. REMA V., ANANTHARA VEEDU, T.C.36/1577, SREEVARAHAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB – R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J ------------------------------------ Crl.M.C. No.4930 of 2008 ------------------------------------- Dated this the 18th day of December, 2008 ORDER Petitioner is the respondent in a proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Trial has commenced. The petitioner wanted the claimant under Section 12 of the said Act to be recalled for cross examination. She had already been examined as PW1. The learned Magistrate reckoned the prayer as calculated to protract the proceedings. In these circumstances the said petition was dismissed. The petitioner preferred a revision. That revision has also been rejected. 2. The learned counsel for the petitioner submits that ignoring the technicalities the petitioner may be granted the relief in the interests of justice. The counsel for the petitioner had unfortunately taken up a stand contrary to the definite stand taken up by the petitioner in the reply notice and his statement. It is hence that it has become important and vital to recall PW1 for cross examination. The counsel has now been changed and a new counsel is conducting the case on behalf of the petitioner. Crl.M.C. No.4930 of 2008 2 In these circumstances subject to any appropriate conditions, which shall compensate PW1, the witness to be recalled, the prayer may be allowed, it is prayed. It is submitted that PW1 is the petitioner in the Section 12 petition and therefore there is not difficulty in securing the presence of the petitioner also. 3. Having considered all the relevant circumstances, I am satisfied that subject to appropriate strict conditions, the prayer of the petitioner can be allowed in the interests of justice. The interest of the respondent can be protected by issuing appropriate conditions. I take note of the fact that the petitioner has already had an opportunity to cross examine PW1. He had recalled some other witnesses, at which stage he did not choose to make the prayer for recall of PW1. Even then, I am satisfied that, subject to appropriate terms and conditions, the prayer can be allowed. I am further satisfied that it is not necessary to wait for issue and return of notice to the respondent in as much as the witness to be recalled is the party herself and she is said to be available before the court below. I am satisfied that the prayer can be allowed. 4. In the result: i) This Crl.M.C is allowed; Crl.M.C. No.4930 of 2008 3 ii) The impugned order passed by the learned Magistrate is set aside; iii) The learned Magistrate shall give the petitioner an opportunity to further cross examine the claimant/PW1 on condition that the petitioner deposits before the court below before the next date of posting (ie. the posting after 19.12.08, to which date the case now stands posted) an amount of Rs.2,500/- (Rupees Two Thousand Five Hundred only) as cost payable to her. If such deposit is paid or made, the learned Magistrate shall forthwith grant an opportunity to the petitioner to further cross examine PW1. Every effort shall be made to dispose of the case as expeditiously as possible thereafter. 5. Hand over a copy of this order to the learned counsel for the petitioner for production before the learned Magistrate forthwith. (R.BASANT, JUDGE) rtr/-