IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.MC.No. 2329 of 2010() ------------------------------------ CRMP.8964/2009 IN CC.482/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KOTTARAKKARA .................... PETITIONER/DEFACTO COMPLAINANT --------------------------------------------------------- ABDUL RAHMAN KUNJU, S/O. MUHAMMED KUNJU, LUNJINA MANZIL, PALLITHOTTAM WARD, KOLLAM WEST VILLAGE, KOLLAM. BY ADV. SRI.B.MOHANLAL, SRI.C.SINOY. RESPONDENTS/COMPLAINANT ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PUSHPA KUMAR, S/O. GOPALA PILLAI, ASWATHI NIVAS, PUNTHALATHAZHAM, VADAKKEVILA, KOLLAM. 3. RAJA KUMARI, D/O. MUTHUSWAMI, ASWATHI NIVAS, PUNTHALATHAZHAM, VADAKKEVILA, KOLLAM. R1 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2329 of 2010 -------------------------- ORDER The sixth charge witness in C.C.No.482/2003 on the file of Judicial First Class Magistrate's Court-II, Kottarakkara was the Investigating Officer. Annexure-V proceeding paper of the learned Magistrate shows that in spite of non bailable warrant issued to the Investigating Officer, through Superior Officer, thrice, he did not turn up. Ultimately, on 22.6.2009, his evidence was dispensed with and the accused were questioned under Section 313 of Code of Criminal Procedure on 16.7.2009. The case was thereafter posted for arguments. Prosecutor filed Annexure-II petition (C.M.P.No.8964/2009) under Section 311 of Code of Criminal Procedure to re-open the evidence for examination of CW6. By Annexure-III order, learned Magistrate dismissed the petition holding that the witness did not turn up, in spite of repeated steps CRMC 2329/10 2 taken. Petitioner, the defacto complainant, filed Crl.M.C.No.194/2010 to quash Annexure-III order. By Annexure-IV order, that petition was disposed on the submission of the learned counsel appearing for the petitioner that judgment in the case has been pronounced. This petition is filed to quash Annexure-III order contending that earlier representation, based on which Annexure-IV order was passed, was a mistake and the case is even now pending. Annexure-V order sheet shows that even on 14.5.2010, the case was not disposed and was pending. On filing this petition, an order of stay was granted on 25.6.2010, which is continuing since then. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure-III order does not show that learned Magistrate considered the question whether for a just decision of the case examination of CW6, the Investigating Officer, is necessary or not. The CRMC 2329/10 3 petition filed under Section 311 of Code of Criminal Procedure was dismissed without considering the material and relevant aspects. It cannot be said that evidence of the Investigating Officer is not relevant or necessary for a just decision of the case, if there is other evidence in support of the prosecution case. In such circumstances, petition is disposed. Annexure-III order is quashed. Judicial First Class Magistrate-II, Kottarakkara is directed to reconsider C.M.P.No.8964/2009 and pass appropriate order in accordance with law. It is made clear that if the evidence of the witness, sought to be examined, is necessary for a just decision of the case, learned Magistrate to exercise the jurisdiction under Section 311 of Code of Criminal Procedure. 23rd September, 2010 (M.Sasidharan Nambiar, Judge) tkv