IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 Crl.MC.No. 3525 of 2011() ------------------------- CC.811/2009 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... PETITIONER: COMPLAINANT ------------------------------------------- SUDHEESH KUMAR, AGED 39 YEARS, S/O.APPUTTY, RESIDING AT KUNJOTTU HOUSE, PANNIYANKARA, KOZHIKODE DISTRICT. BY ADVS. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. RATHEESH.K.K., PC-6608, CITY TRAFFIC POLICE STATION, KOZHIKODE-673 001. 2. SUJITH, PC-7074, CITY TRAFFIC POLICE STATION, KOZHIKODE-673 001. 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 & 2 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA R3 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STK Crl.MC.No. 3525/2011 APPENDIX PETITIONER'S EXHIBITS ANNEXURE I- A TRUE COPY OF THE SWORN STATEMENT 23.3.2009 OF THE PETITIONER. ANNEXURE II- THE TRUE COPY OF THE CERTIFICATE ISSUED FROM THE BEACH HOSPITAL DATED 23.3.2009. ANNEXURE III- THE TRUE COPY OF THE ORDER DATED 26.9.2011 IN CMP NO.4345/2011 IN CC NO.811/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, KOZHIKODE. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGEME STK N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No.3525 of 2011 ------------------------------------------ Dated this the 22nd day of December, 2011 ORDER Petitioner is the complainant in C.C. No:811/09 of JFCM-III, Kozhikode. Alleging custodial torture at the hands of police officials, who are respondents 1 and 2, the complaint was filed by the petitioner. It is stated that the complainant underwent treatment from Government Beach Hospital, Kozhikode, on the day of incident, ie on 29.3.2009, itself. After recording the sworn statement of the complainant and two witnesses, cognizance was taken against respondents 1 and 2. 2. The complainant got himself examined as PW1. Thereafter, that case was posted for examination of the witnesses. The complainant failed to take steps to secure the presence of the witnesses and thus the evidence was closed. Long thereafter, a petition was filed by the complainant/petitioner to reopen the Crl.M.C.No.3525 of 2011 -: 2 :- evidence. That request was turned down by the learned Magistrate. This petition is filed to set aside that order and to allow the complainant to examine those witnesses. 3. Learned counsel for the accused would submit that the complainant/PW1 was cross-examined on 14.07.2010. Thereafter, the case was posted for further evidence to several days. It is submitted that the case lastly stood posted to 14.10.2011, that means for nearly 15 months case was simply adjourned only because the complainant did not take steps to secure the presence of the witnesses. It is also pointed out by the learned counsel that since the complainant did not examine any other witness, the evidence was closed and the matter was posted for questioning the accused under Section 313 Cr.P.C. Again the case stood posted to 23/07/11, 10/08/2011, 17/08/2011, 02/09/2011, 13/09/2011 and Crl.M.C.No.3525 of 2011 -: 3 :- 23/11/2011. It was only thereafter, the petitioner/complainant filed the petition to summon two witnesses. In the petition filed by the complainant for issuance of summons, it was stated by him that on 07.10.10, he went to Madras in search of a job and he was in Madras from 07.10.10 to 11.06.11. But here the contention raised by the petitioner is that his mother-in-law who was staying at Madras was seriously ill and so he had to go to Madras. It was not stated how long he was in Madras. The contention that he remained in Madras for about one year is also found unconvincing. The reason stated is inconsistent also. The learned counsel for the petitioner/complainant submits that one opportunity may be given to examine the witnesses cited by the complainant. That request is strongly opposed by the learned counsel for the accused pointing out that the accused have been suffering from Crl.M.C.No.3525 of 2011 -: 4 :- the trauma of a criminal case filed by the complainant more than 3 years back and the sole object of the petitioner is to cause further harassment to the accused. Because of the long, un-reasonable and un-explainable delay, I find it not just or proper to allow the case to be re-opened for examination of two witnesses at this belated stage. I find no merit in the petition. Hence this petition is dismissed. N.K. BALAKRISHNAN, JUDGE. smvd