Ajith Krishnan v. State Of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 7TH DAY OF JANUARY 2015/17TH POUSHA, 1936 Crl.MC.No. 5439 of 2013 () --------------------------- (AGAINST THE ORDER/JUDGMENT IN CC 134/2013 of C.J.M.,KOTTAYAM) PETITIONER(S)/PETITIONER:

------------------------- AJITH KRISHNAN, S/O.DIVAKARAN, MECHERI HOUSE, POOTHAKUZHI P O, KOTTAYAM BY ADV. SRI.K.P.SUJESH KUMAR RESPONDENT(S)/STATE:

--------------------- STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31 R BY PUBLIC PROSECUTOR SAAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 0701-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MC.No. 5439 of 2013 () --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------ A1:-TRUE COPY OF THE FIR IN CRIME NO 573/2013 DTD 3/5/2013 A2:-TRUE COPY OF DEPOSITION OF PW2 IN CC NO 134/2013 DTD 30/7/2013 A3:-TRUE COPY OF CMP NO 2797/2013 IN CC NO 134/2013 ON THE FILE OF THE CJM COURT, KOTTAYAM A4:-CERTIFIED COPY OF ORDER IN CMP NO 2797/13 IN CC NO 134/13 ON THE FILE OF THE CJM COURT, KOTTAYA, DTD 13/11/2013 RESPONDENT(S)' EXHIBITS ----------------------- :

NIL /TRUE COPY/ P.S. TO JUDGE.

P.UBAID, J.

- - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 5439 OF 2013 - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of January, 2015

O R D E R

The petitioner herein is the sole accused in C.C.No.134/2013 of the Chief Judicial Magistrate Court,Kottayam. The offence alleged against him is punishable under Section 379 IPC and the case requires a warrant procedure. Pending the trial process, the petitioner made an application under Section 311 of Crl.P.C. to recall a material witness examined by the prosecution as PW2. The learned Magistrate dismissed the application on 30/11/2013 on the ground that a witness cannot be summoned or recalled at the whims and fancies of the accused. The said order in C.M.P.No.2797/2013 is sought to be quashed under Section 482 Crl.P.C.

2. On hearing the learned counsel and on perusal of the impugned order, I find that the petitioner made such an application under Section 311 Crl.P.C. when the trial was midway. Of course, he could have waited till the stage under Section 243(2) of Crl.P.C. No doubt, he will get an

Crl.M.C. No.5439 of 2013 : 2 :

opportunity to adduce defence evidence, and once examination of the accused is over, he will be called upon to enter upon his defence under Section 243 (1) Crl.P.C. If he wants to examine any witness of his own or, if he wants to cross-examine any witness already examined by the prosecution, he can make an application for the said purpose under Section 243(2) Crl.P.C. If such examination of the witness is absolutely necessary for a just decision, the trial court will have to allow the application and recall the witness. Without waiting for the right course at the right stage, the petitioner made application in haste under Section 311 of Crl.P.C. when the trial was midway. I find that without prejudice to the right of the petitioner to make application under Section 243 (2) of the Crl.P.C., this proceeding can be closed.

In the result, this Crl.M.C. is closed without prejudice to the right of the petitioner to make application before the Court below under Section 243 (2) of the Crl.P.C. to recall PW2 as part of defence evidence.

Sd/- P.UBAID, Judge.

Dpk /true copy/ PS to Judge.

Crl.M.C. No.5439 of 2013 : 3 :