IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 Crl.MC.No. 359 of 2011() ------------------------ SC.164/2009 of ADDL. SESSION'S COURT (ADHOC-III), KASARAGODE .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. A.G.BINOY, S/O.GOPALAN, AGED 30 YEARS, ATHIYAN HOUSE, AJANOOR KADAPPURAM, AJANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. SUDHI @ SUDHEESH, S/O.HARIDAS, T.P.NIVAS, AJANOOR KADAPPURAM, AJANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 3. ANEESH, S/O.MANOHARAN, AJANOOR KADAPPURAM, AJANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 4. C.K.RATHEESH, S/O.BHASKARAN, AGED 24 YEARS, KOLAVAYAL, AJANOOR, AJANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): STATE: --------------------------------------- 1. THE STATION HOUSE OFFICER, HOSDURG POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.359 of 2011 --------------------------------------- Dated this 07th day of February, 2011 ORDER The prayer in this petition is to quash Annexure-3, order and to permit petitioners to recall and cross examine PWs.3 to 5. 2. Petitioners are the accused in S.C.No.164 of 2009 of the court of Additional Sessions Judge (Adhoc-II), Kasaragod for offences punishable under Secs.143, 147, 148, 341, 323, 324 and 308 r/w Sec.149 of the Indian Penal Code. The case was posted for evidence of prosecution on 17.06.2010. PWs. 3 to 5 were not cross examined by petitioners as that their counsel was not present as he met with a road accident and could not come to the Court on the relevant day. Petitioners filed an application under Sec.311 of the Code of Criminal Procedure on 30.06.2010 requesting to recall PWs.3 to 5 and permit them to cross examine PWs.3 to 5. That application was dismissed by the learned Additional Sessions Judge as per Annexure-3, order dated 24.01.2011 stating that the application is not maintainable since it is made by the petitioners on a time when the Advocate who Crl.M.C.No.359 of 2011 -: 2 :- filed the petition has no local standi. 2. Learned counsel has sought permission to recall and cross examine PWs.3 to 5. It is submitted that it was because the counsel was laid up due to a road accident that PWs.3 to 5 could not be cross examined. I have heard learned Public Prosecutor also. 3. Having regard to the circumstances stated, I am inclined to think that learned Additional Sessions Judge ought to have granted permission to cross examine PWs.3 to 5, if necessary on terms. PWs.3 to 5 were not at fault and are to be called again to attend the Court for cross examination. Their cost has to be met under Sec.309 of the Code of Criminal Procedure. Hence I am inclined to allow the petition on condition on terms of cost. Resultantly this criminal miscellaneous case is allowed. Annexure-3, order is set aside. Crl.M.P.No.1435 of 2010 in S.C.No.164 of 2010 of the court of learned Additional Sessions Judge, Kasaragod will stand allowed subject to condition that petitioners paid to each of PWs.3 to 5 cost of Rs.500/- (Rupees Five Hundred Only) on their appearance in Court. Learned Crl.M.C.No.359 of 2011 -: 3 :- Additional Sessions Judge shall recall PWs.3 to 5 and fix up the date for their appearance on which day cost as ordered shall be paid to the said witnesses. (THOMAS P JOSEPH, JUDGE) Sbna/-