C.V. Krishnan vs The State of Kerala

Thomas P. Joseph, J.—Public Prosecutor takes notice for the Respondent.

Petitioner is accused in C.C. No. 631 of 2008 of the court of learned Chief Judicial Magistrate, Kasaragod facing trial for offence punishable u/s 420 of the Indian Penal Code. According to the Petitioner, case arose on a chitty transaction. Some of the prosecution witnesses were examined and they were cross-examined as well. Petitioner was questioned u/s 313 of the Code of Criminal Procedure (for short, "the Code"). While so, there was a change of counsel for the Petitioner and the new counsel found that certain relevant questions were not put to the prosecution witnesses. Thereon Petitioner filed C.M.P. No. 1756 of 2011 u/s 311 of the Code to recall PWs 1 and 2. Grievance of the Petitioner is that no final order is passed on the said application. On that submission of learned Counsel, this Court called for a report from the learned Chief Judicial Magistrate, Kasaragod through the Registrar (Judicial). The Registrar (Judicial) after contacting learned Chief Judicial Magistrate has reported that Ext.P3, application (C.M.P. No. 1756 of 2011) was disposed of on 01.04.2011 with the following order:

P.Ws. 1 to 3 were already cross examined. So the petition is dismissed.

Ext.P3 also shows that an order has been passed on 01.04.2011 (though it is not very legible).

I am inclined to treat this petition as one in challenge of the above said order. Learned Counsel requests that Petitioner may be given opportunity to further cross-examine PWs 1 and 2 since some relevant questions were not put to them in cross-examination. I have heard learned Public Prosecutor in this regard.

It is seen that learned Chief Judicial Magistrate has not stated any sufficient reason for dismissing C.M.P. No. 1756 of 2011. Having regard to the grievance of the Petitioner and the submission that some relevant questions were not put to the prosecution witnesses I am inclined to give opportunity to the Petitioner to further cross-examine PWs 1 and 2. But it shall only be on terms of cost.

Resultantly this petition is allowed in the following lines:

i. Order dated 01.04.2011 dismissing Ext.P3, C.M.P. No. 1756 of 2011 in C.C. No. 631 of 2008 of the court of learned Chief Judicial Magistrate, Kasaragod is set aside and that C.M.P. is allowed subject to the condition that Petitioner shall pay Rs. 750/- each as cost to PWs 1 and 2 on the date of their appearance.

ii. Learned Chief Judicial Magistrate shall recall PWs 1 and 2 for further cross-examination.

iii. Petitioner shall pay cost as aforesaid on the date PWs 1 and 2 appear in the court and before they are subjected to further cross-examination.