IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 Crl.MC.No. 3839 of 2007() ------------------------- CC.130/2004 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... PETITIONER: ACCUSED ------------------- 1. SABU, SABU BHAVAN, ERUMAKUZHI MURI, PALAMEL VILLAGE, MAVELIKARA TALUK. 2. RAMACHANDRAN, DO. DO. 3. SAJI, S/O.RAMACHANDRAN, DO. DO. 4. MONY, W/O.RAMACHANDRAN, DO. DO. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.C. SANTHOSH KUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No.3839 of 2008 ------------------------------------------------- Dated this the 2nd day of June, 2008 ORDER The petitioners are accused facing indictment in a prosecution for offences punishable, inter alia, under Sec.324 of the IPC. The petitioners have a case that the incident did not take place as alleged by the prosecution and they were victims of aggression. At the stage of defence, the petitioners had produced 4 discharge certificates to show that 4 accused persons had suffered injuries in the incident which had allegedly taken place. They produced the discharge certificates. They wanted the relevant records to be summoned from the Government Hospital. They wanted the Doctor who treated them and issued the discharge certificates to be examined as a defence witness. That witness was citied as the first witness in the defence schedule and the Superintendent of the Government Hospital where the records Crl.M.C. No.3839 of 2008 -: 2 :- are maintained was summoned as D.W.2. 2. The learned Magistrate issued summons to D.W.2. He appeared before court; but he stated that the documents are not traceable. The first witness had also been summoned. He had not appeared before court. Because of the stand taken by the 2nd witness that the documents are not available, the learned Magistrate closed the defence evidence and did not grant the petitioners an opportunity to examine the first witness cited by them. 3. The learned counsel for the petitioners submits that this amounts to gross denial of reasonable opportunity to the petitioners to substantiate their case. Even if the 2nd witness was not able to produce the original documents for whatever reasons, the 1st witness who had issued the discharge certificates in question which had already been produced before the learned Magistrate must have been summoned so that the petitioners could have made an attempt to prove the discharge certificates issued by the Doctor notwithstanding the failure/refusal of the 2nd witness to produce the relevant documents. 4. The stand taken by the petitioners does not appear to me to be absolutely reasonable. The learned Public Prosecutor was requested to take specific instructions. The learned Public Crl.M.C. No.3839 of 2008 -: 3 :- Prosecutor now submits that the State has no objection against the prayer of the petitioners to examine the 1st witness cited by them on their side in an attempt to prove the 4 discharge certificates the originals of which have already been produced before the learned Magistrate. 5. I am, in these circumstances, satisfied that this Crl.M.C. can be allowed. The order passed by the learned Magistrate on 3/12/07 which is extracted in para-4 of the Crl.M.C. is set aside. The learned Magistrate is directed to summon the first witness cited by the petitioners and to give the petitioners an opportunity to examine him and prove the documents (4 discharge certificates) which have already been produced before the learned Magistrate. Needless to say, the petitioners must take all necessary steps to summon the witness before the learned Magistrate within a period of 14 days from this date. The matter must be disposed of as early as possible by the learned Magistrate. 6. Hand over a copy of this order to the learned counsel for the petitioners. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No.3839 of 2008 -: 4 :-