IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.MC.No. 2066 of 2009() -------------------------------------- (CRIME NO.576/2007 OF MANNUTHY POLICE STATION) PETITIONER(S): ACCUSED: ----------------------------------------- T.G.ELDHOSE, AGED 41 YEARS, S/O.GEEVARGHESE, THEKKILAKKATTU HOUSE, MANALITHARA P.O., MALAKKA, THRISSUR. BY ADVS.MR.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MANNUTHY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2009 ALONG WITH CRMC NO. 2067 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.Nos.2066 & 2067 of 2009 -------------------------- COMMON ORDER Petitioner in Crl.M.C.No.2067/2009 is the accused in Petty Case No.2155/MV/C2/07 of Mannuthy Police Station, pending as S.T.No.104/08 before Judicial First Class Magistrate's Court-III, Thrissur. When application filed by the prosecution to re-open the evidence and to summon witnesses was allowed, petitioner filed Crl.M.C.No.862/2009 challenging that order. Under Annexure-C order this Court quashed that order and directed the Magistrate to consider the request made by the prosecution afresh and pass appropriate orders after hearing the parties. It was made clear that it is desirable that prosecution should state the purpose for which these witnesses are to be examined. Thereafter, Annexure-D application was filed. Assistant Public Prosecutor sought for permission to examine the witnesses. It was allowed CRMC 2066&2067/09 2 under Annexure-H order. This petition is filed under Section 482 of Code of Criminal Procedure contending that Annexure-H order does not show that learned Magistrate considered the directions issued by this Court in Annexure-C order. 2. It is argued that even though Annexure-D application was filed, the purpose of examining the witnesses was not disclosed and if the purpose is only to mark documents, all the witnesses need not be examined and therefore, Annexure-H order is to be quashed. By Annexure-H order, petitioner in Crl.M.C.No.2066/2009 is permitted to be examined by the prosecution as an additional witness. That witness filed Crl.M.C.No.2066/2009 challenging that order contending that the said order is in violation of his constitutional rights conferred under Article 20(3) of the Constitution of India. 3. Petitioner in Crl.M.C.No.2066/2009 is the accused in Crime No.576/2007 of Mannuthy Police Station, pending as C.C.No.51/2008 before Judicial CRMC 2066&2067/09 3 First Class Magistrate's Court-III, Thrissur, wherein, the allegation against him is that he committed offences under Sections 279 and 338 of Indian Penal Code and Section 3(1) read with Section 181 of the Motor Vehicles Act. The case of the petitioner is that if he is allowed to be examined as a witness in S.T.No.104/2008, that evidence will be used against him in Crime No.576/2007 and therefore, it would amount to testimonial compulsion which cannot be permitted. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. As is clear from Annexure-C order, this Court quashed the earlier order passed by the learned Magistrate permitting additional witnesses to be examined, for the reason that learned Magistrate did not consider the purpose for which those witnesses are to be examined. While directing the Magistrate to consider the request afresh and to pass appropriate orders, it was made CRMC 2066&2067/09 4 clear that prosecution has to disclose the purpose for which the witnesses are to be examined. Annexure-H order does not show that this aspect was considered by the learned Magistrate as it does not show as to who all are the witnesses to be examined or the witnesses already examined to be re-called. Though Annexure-D petition was filed subsequent to Annexure-C order passed by this Court and the persons to be examined are shown in Annexure-D petition, the purpose of their examination and what each of the witnesses is expected to depose is not stated. In such circumstances, it is clear that Annexure-D petition does not comply with the directions issued in Annexure-C order. So also Annexure-H order is not in conformity with the directions issued in Annexure-C order. Therefore, Annexure-H order can only be set aside with a direction to the Magistrate to consider the matter afresh in the light of the directions issued in Annexure-C order, granting opportunity to the CRMC 2066&2067/09 5 prosecution to file a proper application in compliance with the directions in Annexure-C order stating which witnesses are to be examined and for what all purpose. The Magistrate should consider whether examination of the said witnesses is necessary in the light of the said disclosure, as what the Magistrate has to exercise is the power provided under Section 311 of Code of Criminal Procedure and Magistrate has to satisfy that it is expedient in the interest of justice to permit prosecution to examine those witnesses. 6. There is force in the argument of learned counsel appearing for the petitioner in Crl.M.C. No.2066/2009 that if the said petitioner is compelled to be examined in S.T.No.104/2008, it would amount to testimonial compulsion as whatever is to be deposed by the petitioner, if he is to be examined as a witness, would be used against him in C.C.No.51/2008, where he is facing trial. In such circumstances, petitioner cannot be compelled to be CRMC 2066&2067/09 6 examined as a witness, though such examination is in another case. Crl.M.C.No.2066/2009 is allowed. Permission granted by the Magistrate to examine the petitioner therein as a witness in S.T.No.104/2008 is quashed. Crl.M.C.No.2067/2009 is allowed. Annexure-H order is quashed. Learned Magistrate is directed to re- consider the request of the prosecution to recall the witnesses already examined as well as the permission sought to examine new witnesses. Prosecution is permitted to file a proper application, in compliance with the directions issued in Annexure-C order, disclosing the purpose for which each of the witnesses is to be examined. Learned Magistrate to consider whether it is expedient in the interest of justice to examine those witnesses and pass appropriate orders in accordance with law. 1st July, 2009 (M.Sasidharan Nambiar, Judge) tkv