IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 Crl.MC.No. 2719 of 2010() ----------------------- CMP NO. 834/2010 IN ST.73/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, VARKALA ................ PETITIONER / PETITIONER / ACCUSED : ------------------------------------------------------- S.D.PRADEEP, S/O.DHAMODHARA PILLAI, SREEVALSAM VEEDU, PARIPPILLY VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI. M. TRIPTEN RESPONDENTS / RESPONDENT / COMPLAINANT / STATE : ---------------------------------------------------------------------------------- 1. SUKUMARA PILLAI, S/O.GOPALANUNNITHAN, KAKKATTUMELATHIL VEEDU, AYROOR VILLAGE, KIZHAKKEPPURAM DESOM - 695 310. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.R.RAJESH (VARKALA) SMT.LEKSHMI SWAMINATHAN SMT.M.K.RAJITHA R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.2719 OF 2010 --------------------------------------------- Dated 18th October, 2010 O R D E R Petitioner, the accused in S.T.73/2007 on the file of Judicial First Class Magistrate's Court-II, Varkala filed this petition challenging Annexure-A2 order, whereunder C.M.P.834/2010 filed by the petitioner for granting adjournment to cross examine the witness was dismissed. 2. Learned counsel appearing for the petitioner and first respondent, the complainant before the learned Magistrate were heard. 3. Even according to the petitioner first respondent was examined as PW1. He was cross examined also. Subsequently an application was filed by the first Crmc 2719/10 2 respondent, to re-call PW1 for the purpose of marking a reply notice sent by the petitioner. Learned Magistrate allowed that application. When PW1 was re-called and examined, C.M.P.834/2010 was filed for adjournment. It was dismissed under Annexure-A2 order for the reason that PW1 was examined after recalling, only to mark the reply notice sent by the petitioner and therefore, there is no necessity to grant an adjournment for cross examination. Argument of the learned counsel is that when PW1 was examined earlier, learned counsel appearing for the petitioner was not present as the counsel was hospitalized and when representation was made through another counsel, that counsel, who was not holding a vakalath was asked to cross examine PW1 and thereafter when PW1 was recalled, an Crmc 2719/10 3 opportunity should have been granted to cross examine PW1. Fact that after re-calling PW1 the only evidence recorded is with regard to the reply notice which was sent by the petitioner is not disputed. In such circumstances, I do not find any reason to interfere with Annexure-A2 order. 4. Copy of C.M.P.834/2010 made available by the learned counsel, shows that it is an application submitted by Adv.Valsamma Stephen stating that the case is posted for examination of PW1, but counsel cannot appear on that day and therefore, for examination of the witness, case is to be adjourned. There is no case in the application that when PW1 was examined earlier, he could not be cross examined properly and for effective cross examination the case is to be adjourned. When Crmc 2719/10 4 purpose of recalling PW1 was only to mark a reply notice sent by the petitioner, I find no reason to interfere with Annexure-A2 order. If case of the petitioner is that PW1 could not be cross examined properly earlier, as his counsel was laid up, remedy of the petitioner is to file an application for that purpose before the learned Magistrate. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.