IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 Crl.MC.No. 1242 of 2010 --------------------------------------- ST.1814/2007 of JFCM-V, KOTTAYAM .................... PETITIONER/ACCUSED: M.T.RADHAKRISHNAN,THEKKEKUTTU HOUSE, T.P.PURAM P.O., VAZHOOR VILLAGE, BY ADV. SRI.K.VINOD CHANDRAN SMT.A.S.BEENU RESPONDENTS/STATE & COMPLAINANT: 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.N.CHANDRABOSE, S/O.NANAPPAN, MEENACHIRA HOUSE, THIRUVARPPU VILLAGE. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1242 of 2010 -------------------------- ORDER Petitioner is the accused in S.T.No.1814/2007 on the file of Judicial First Class Magistrate's Court-V, Kottayam. When the case was posted for arguments, after closing the defence evidence, petitioner filed C.M.P.No.156/2010 (Annexure-A1 petition) under Section 311 of Code of Criminal Procedure to issue summons to the second witness, in the witness list filed by the petitioner earlier, contending that evidence of the witness is just and necessary for proving the defence case. By Annexure-A2 order, learned Magistrate dismissed the petition finding that attempt is only to protract the trial. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 order contending that the witness is crucial to prove the defence case and therefore, learned Magistrate should have allowed the petition. CRMC 1242/10 2 Learned counsel appearing for the petitioner argued that when the evidence of the witness sought to be examined is material to prove the defence case, learned Magistrate was not justified in dismissing the petition. 2. Annexure-A1 petition shows that though the witness, sought to be examined by filing C.M.P.No. 156/2010, was shown as witness in the witness list, petitioner did not seek any summons earlier. It is only after closing the evidence, an attempt is made to get summons issued to the witness under the guise that witness had promised to appear earlier, but subsequently, changed his stand on the ground that he did not receive any summons. Annexure-A1 petition does not disclose what is the aspect, which the witness is expected to depose. In the absence of the details, I cannot find fault with the learned Magistrate in not exercising the powers provided under Section 311 of Code of Criminal procedure. Section 311 of Code of Criminal CRMC 1242/10 3 Procedure is to be invoked by the learned Magistrate if he finds that it is just and necessary for a proper decision of the case. When, on Annexure-A1 petition it cannot be said that evidence of the witness sought to be examined is just and necessary, there is no reason to interfere with Annexure-A2 order. Like any other interlocutory order, petitioner is at liberty to challenge it along with the final order, if it goes against him. Petition is disposed. 9th April, 2010 (M.Sasidharan Nambiar, Judge) tkv