IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 WP(C).No. 27683 of 2007(U) -------------------------- AGAINST THE ORDER DATED 05/09/2007 IN CMP.2792/2007 IN CC.29/2000 of J.M.F.C., AMBALAPUZHA .................... PETITIONER: ------------ N.S.JAYAKUMAR, AGED 45 YEARS, S/O. NAGARAJ SHENOY, RESIDING AT J.P.MADOM, AMBALAPUZHA VILLAGE, AMBALAPUZHA. BY ADV. SRI.V.SANTHARAM SRI.ANTO THOMAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, AMBALAPUZHA POLICE STATION. (CRIME NO.123/1999). 2. PREMKUMAR, S/O. PADMANABHA SHENAI, THOTTUNGARA MADATHIL, KOMANA MURI, AMBALAPPUZHA PANCHAYAT WARD-11, AMBALAPPUZHA VILLAGE. BY ADV. RAMAKUMAR (SR.) GOVERNMENT PLEADER ADV.SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` W.P.(C) No. 27683 OF 2007 U ```````````````````````````````````````````````````` Dated this the 1st day of April, 2008 J U D G M E N T This petition under Article 226 of the Constitution is filed by the petitioner herein, who is the de facto complainant in a prosecution under sections 406 and 477A IPC. On a complaint filed by the petitioner, which was referred to the police under section 156(3) Cr.P.C., the crime concerned was registered. The matter has been dragging on for quite some time and the parties have already come to this Court on a couple of occasions. 2. The latest controversy is about an application filed under section 311 Cr.P.C. by the de facto complainant, obviously with the blessings of the Prosecutor, I must assume, to invoke the power under section 311 Cr.P.C. to recall the investigating officer and to mark two reports filed by him in the course of investigation before the Magistrate and which documents are already available in court. According to WPC.27683/07 : 2 : the petitioner, it was an inadvertent omission on the part of those responsible for the conduct of the trial to pick out those documents and mark them in the course of trial. It was hence prayed that the investigating officer may be recalled under section 311 Cr.P.C. to facilitate the introduction of those two documents dated 15.1.03 and 21.6.04 in the evidence. 3. That application was obviously opposed and the learned Magistrate by the impugned order took the view that the application is hopelessly belated; that on earlier occasion in spite of opportunity the Prosecutor had not made any such application and that granting of the application would contribute to further protraction. It was in these circumstances that the petition was dismissed by the learned Magistrate by the impugned order. 4. The petitioner submits that the documents are vitally relevant for the adjudication of guilt. The mere fact that the person in charge of the prosecution had omitted to bring into evidence these documents may not be permitted to affect the due administration of justice. It is submitted that the WPC.27683/07 : 3 : investigating officer is readily available and in any view of the matter, no further protraction is likely to result by the introduction of the documents in evidence by recalling the investigating officer. Definitely, the investigating officer will have to be cross-examined and if any incriminating materials are introduced in evidence opportunity to explain the same will have to be given to the accused under section 313 Cr.P.C. Of course, the admissibility of the document in evidence will have to be ruled by the court when it is sought to be introduced. 5. Having considered all the relevant aspects, I am persuaded that the interests of justice shall be served ideally by directing the recall of the investigating officer for the purpose of attempting to introduce those two reports dated 15.3.03 and 21.6.04. It is crucial to note that no one has a case that those documents are not vitally relevant for the purpose of adjudication of guilt. The learned Senior Counsel for the accused Sri.K.Ramkumar submits that the accused wants to raise a contention before the learned Magistrate that WPC.27683/07 : 4 : those documents are not vitally relevant also. Be that as it may, I am satisfied that the learned Magistrate was not justified in turning down the prayer for introduction of those two documents in evidence on the mere ground of delay and on the ground that the said prayer could have been made earlier by the Prosecutor when he filed an earlier application under section 311 Cr.P.C. 6. This writ petition is, in these circumstances, allowed. The impugned order is set aside. The petition filed under section 311 Cr.P.C. is allowed and the learned Magistrate is directed to recall the investigating officer and afford an opportunity to the Prosecutor to introduce the two documents in evidence subject of course to all objections which the accused wants to raise. Needless further to say that if those documents are introduced in evidence, the learned Magistrate must ensure that the accused is given all opportunities in accordance with law. (R.BASANT, JUDGE) aks