IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 Crl.Rev.Pet.No. 263 of 2001() ----------------------------- CC.361/1995 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANASSERRY .................... REVN. PETITIONER/DEFACTO COMPLAINANT: ----------------------------------------------------- JOSEPH VARGHESE ALIAS JOSEKUTTY, MUTHIRAPARAMBIL HOUSE, MADAPPALLY VILLAGE, CHANGANACHERRY. BY ADV. SRI.MVS.NAMBOOTHIRY SRI.S.SANTOSH KUMAR SRI.DEEPAK THOMAS RESPONDENTS: 2ND ACCUSED AND COMPLAINANT: ------------------------------------------------------------ 1. SHIBU XAVIER, MURIYANKAVUMKAL HOUSE, MADAPPALLY KARA, MADAPPALLY VILLAGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.R.P.No.263 of 2001 ========================== Dated this the 8th day of April, 2008 ORDER The defacto complainant in Crime.No.800/1994 of Changanasserry Police Station is the revision petitioner. 2. He impugns the order of acquittal passed by the trial court on the ground that the prosecution had failed to examine CW15, the Investigating Officer. It is seen observed by the learned Magistrate that CWs.14 and 15 were never summoned for examination. But the application filed by the prosecution under Section 311 of the Code of Criminal Procedure was allowed and “bailable warrant was issued as a last chance”. But still, the prosecution failed to produce the said witness before court for examination. 3. While acquitting the accused, the learned Magistrate has relied on the decision of the Supreme Court in Raj Deo Sharma v. State of Bihar ( 1999 JT (7) SC 317). But the said decision was overruled by a larger Bench of the Apex Court in Ramachandra Rao v. State of Karnataka (2002 (2) KLT 189 (SC)). C.R.R.P.No.263/2001 2 4. Having heard learned counsel for the petitioner and having perused the materials available on record, I am satisfied that the prosecution has to be afforded a further opportunity to examine the remaining witnesses. It is on record that large quantity of gold ornaments and other valuables stolen from the residence of the petitioner. There appears to be sufficiently satisfactory evidence on record in the case. The accused ought not to have been acquitted on a technical ground. Therefore, the grievance of the petitioner is eminently reasonable and justifiable. 5. In that view of the matter, the order of acquittal is set aside. The case shall be disposed by the court below in accordance with law. The criminal revision petition is allowed. A.K.BASHEER,JUDGE dvs