IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 Crl.MC.No. 72 of 2011() ----------------------- CC.369/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... (CRIME NO.657/1997 OF FORT POLICE STATION) PETITIONER(S): REVISION COUNTER PETITIONER/ACCUSED: -------------------------------------------------------------------------------------------- 1. BABU @ ANIL KUMAR, S/O.SREEDHARAN, NEAR AR CAMP, PULINKUDI (PO), THIRUVANANTHAPURAM. 2. PRASANNA, D/O.DAKSHAYANI, PAZHAVAR, POONTHURA, THIRUVANANTHAPURAM. BY ADVS. SRI.G.P.SHINOD, SRI.RAM MOHAN.G., SRI.P.GOVIND. RESPONDENT(S): REVISION PETITIONER/STATE & DEFACTO COMPLAINANT: ------------------------------------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 035. 2. PRABHAVATHI, UNAMUDUMBIL VEEDU, KONCHIRAVILA, KALLADIMUGHOM, MARACAUD, THIRUVANANTHAPURAM - 695 009. R1 BY PUBLIC PROSECUTOR SRI. JAYASURYA R2 BY ADVS. SRI.R.T.PRADEEP, SRI.V.VIJULAL. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.72/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE ORDER DTD. 23/09/1999 IN CRL.M.P.NO.8575/1999. ANNEX.B: COPY OF THE ORDER DTD. 11/06/2009 IN CMP.NO.2824/2009 IN CC.NO.369/2002. ANNEX.C: COPY OF THE ORDER DTD. 09/12/2009 IN CRL.R.P.NO.117/2009. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.72 of 2011 -------------------------------------- Dated this the 13th day of June, 2011. ORDER Petitioners are accused 1 to 6 in Crime No.657 of 1996 of Fort Police Station for offences punishable under Sections 143, 147, 148, 341, 323, 324 and 326 read with Section 149 of the Indian Penal Code (for short,”the IPC”). Learned Chief Judicial Magistrate, Thiruvananthapuram took the case on file as C.C.No.91 of 1997. While that case was pending before learned Chief Judicial Magistrate the defacto complainant (CW2) filed Crl.M.P.No.8575 of 1999 to examine CW11, the Medical Officer who is said to have performed surgery on the injured for (alleged) removal of kidney obviously to show that offence punishable under Sec.307 of the IPC is made out. Learned Chief Judicial Magistrate dismissed that application observing that since charge is framed for offences other than under Sec.307 of the IPC, examination of CW11 at that stage was not required. Thereafter learned Chief Judicial Magistrate made over the case to the court of learned Judicial First Class Magistrate-V, Thiruvananthapuram where it was renumbered as C.C.No.368 of 2002. CW3 in the Police case who is the husband of the second respondent filed a private complaint as C.M.P.No.1 of 1998 before learned Judicial First Class magistrate- II, Thiruvananthapuram for offences punishable under Secs. 323, 324, 326 and 307 read with Sec.34 of the IPC. Learned Magistrate took cognizance only for Crl.MC No.72 of 2011 2 offences punishable under Secs. 323 and 324 read with Sec.34 of the IPC and filed C.C.No.1 of 1998. That case also was transferred to the court of learned Judicial First Class Magistrate-V, Thiruvananthapuram (where C.C.No.368 of 2002 is pending) and it was renumbered as C.C.No.369 of 2002. In C.C.No.369 of 2002 the second respondent (CW1) filed C.M.P.No.2824 of 2009 to examine CW11 (Medical Officer) in the police case as a witness. Learned Magistrate dismissed that application vide Annexure-B, order on the ground that a similar request was turned down by learned Chief Judicial Magistrate in C.C.No.91 of 1997 (which was later made to the court of learned Judicial First Class Magistrate-V, Thiruvananthapuram and renumbered as C.C.No.368 of 2002). Dismissal of C.M.P.No.2824 of 2009 was challenged before learned Sessions Judge, Thiruvananthapuram in Crl.R.P.No.117 of 2009. Learned Sessions Judge vide Annexure-C, order allowed the petition. Annexure-C, order is under challenge at the instance of petitioners. I have heard learned counsel for petitioners, second respondent and learned Public Prosecutor. 2. Learned counsel has contended that learned Sessions Judge was not right in upsetting the order passed by learned Magistrate on C.M.P.No.2824 of 2009 firstly, because a similar plea was turned down by the learned Chief Judicial Magistrate on Crl.M.P.No.8575 of 1999 in C.C.No.91 of 1997 (later made over to the court of learned Judicial First Class Magistrate-V, Thiruvananthapuram and renumbered as C.C.No.368 of 2002) and secondly, Crl.MC No.72 of 2011 3 the witness could be examined in the course of trial and hence it was not necessary to summon that witness at this stage of the proceeding. It is also submitted by learned counsel that attempt of second respondent is only to drag petitioners to the court of Sessions by incorporating Sec.307 of the IPC. 3. Learned counsel for second respondent submitted that dismissal of Crl.M.P.No.8575 of 1999 in C.C.No.91 of 1997 (renumbered as C.C.No.368 of 2002 of the court of learned Judicial First Class Magistrate-V, Thiruvananthapuram) was at a time when learned Chief Judicial Magistrate had already framed charge and before examination of the prosecution witnesses commenced. That dismissal cannot in any way affect C.M.P.No.2824 of 2009 (filed in C.C.No.369 of 2002) at the stage evidence of the second respondent under Section 244 of the Code of Criminal Procedure (for short, “the Code”) was being recorded. According to the learned counsel the husband of second respondent was examined as CW1, another witness was examined as CW2, the Medical Officer who had examined the second respondent and issued wound certificate was examined as CW3. It is at that stage second respondent wanted the Medical Officer who issued Ext.C2, wound certificate to be examined. Crl.MC No.72 of 2011 4 4. Under Sec.244(1) of the Code, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Under Sub-sec.(2), the Magistrate may on the application of the prosecution issue summons to any of its witnesses directing him to attend or to produce any document or other thing. 5. It is by virtue of that provision that second respondent filed C.M.P.No.2824 of 2009 in C.C.No.369 of 2002. At that stage, it was necessary to ascertain whether any offence under Sec.307 of the IPC is made out. Learned Magistrate has dismissed C.M.P.No.2824 of 2009 solely for the reason of dismissal of Crl.M.P.No.8575 of 1999 by the learned Chief Judicial Magistrate which was in a different concept. Learned Sessions Judge has taken into account these aspects and found that examination of the witness suggested by the second respondent in C.C.No.369 of 2002 was necessary and allowed the request. I do not find reason to interfere with the order under challenge. Resultantly this Criminal Miscellaneous Case is dismissed. THOMAS P.JOSEPH, Judge. cks