This writ petition challenged the Sub Judge's order permitting examination of only two witnesses from an additional schedule in an ongoing suit alleging police brutality.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931
WP(C).No. 29579 of 2009(O) --------------------------------OS.299/1999 of II ADDL.SUB COURT,TRIVANDRUM ...........................
PETITIONER(S):
V.GOPALAKRISHNAN, S/O. P.VASUDEVA PANICKER, AGED 51 YEARS, DEPUTY SUPERINTENDENT (HG), LOK AYUKTA, THIRUVANANTHAPURAM AND RESIDING AT SUGATHA BHAVAN ,PATHIRAPPALLY, PRA-92,POOJAPPURA, THIRUVANANTHAPURAM.
BY ADV. SRI.V.SURESH SRI.G.SUDHEER
RESPONDENT(S):
BY ADV. SRI. S. SREEKUMAR FOR R1
GOVT.PLEADER P.K RAVIKRISHNAN FOR R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
S.S.SATHEESACHANDRAN, J.
W.P.(C).No.29579 OF 2009
Dated this the 2nd day of November 2009
JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Granting a writ of certiorari or such other writ, order or direction as the court may consider appropriate calling for the records relating to Ext.P4, Ext.P7 and Ext.P8 and quashing them.
ii) Allowing such other relief as the court may consider appropriate in the circumstances of the case and in the interests of justice.
2. Petitioner is the second defendant in O.S No.299 of 1999 on the file of the Sub Court, Thiruvananthapuram. Suit is for damages, and the first respondent is the plaintiff. Petitioner is a
W.P.(C).No.29579 OF 2009
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police officer. Plaintiff claimed compensation against the petitioner and also the State alleging police brutality. The trial of the suit is now in progress. Evidence of the plaintiff is over, and on behalf of the defendants, nearly nine witnesses have already been examined including the present petitioner/second defendant. The trial commenced as early in 2007, but, it continues unabated. Petitioner/second defendant moved an application to summon four more witnesses and another petition for issuing service by byparty summons. The learned Sub Judge after hearing both sides allowed examination of the first two witnesses in the additional witness schedule but declined summons to the other two witnesses. Propriety and correctness of the order so passed by the learned Sub Judge is challenged in the writ petition invoking the visitotial jurisdiction vested with this court.
W.P.(C).No.29579 OF 2009
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2. I heard the counsel on both sides. It
is submitted by the learned counsel for the petitioner that to disprove the version canvassed by the plaintiff that he had undergone treatment in Medical College Hospital after being subjected to alleged police brutality and to show that he was under judicial custody during the period and was admitted to another hospital the first defendant
had examined two Police Constables who were on guard duty at that hospital. The examination of the four witnesses in the additional witness schedule is necessary to substantiate the evidence to the first defendant is the submission of the counsel. Whatever be the merit of the submission made by the learned counsel for the petitioner, in the given facts of the case where it is seen that
the evidence in the case has commenced as early from 2007 and the continuation of the trial is going on I do not find any impropriety or
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illegality in the order passed by the court below restricting the examination of the first two witnesses alone in the witness schedule. One among the witnesses whose examination was disallowed by the court below had been cited for the purpose of proving a 164 statement of the witnesses. He is a retired District and Sessions Judge who, previously when he was a Magistrate had recorded that statement is the reason stated for citing him in the case. The learned counsel submits that witness No. 3 in the additional witness schedule is the person who gave that 164 statement during the investigation of the crime. Even if that be so, if his evidence was material he should have been
included as a witness earlier when the case was
posted for filing witness schedule by the defendant. Request made by the defendant for summoning additional witnesses in fact was not justifiable, but the court below in exercise of its
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W.P.(C).No.29579 OF 2009
discretion has permitted the examination of two of the witnesses having regard to the disputed questions arising for adjudication. I find no impropriety or illegality in the order of the court limiting the examination of two of the witnesses alone cited in the additional witnesses schedule.
Writ petition is closed.
Sd/-
S.S.SATHEESACHANDRAN, JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv
1 issue framed by the court
Whether the Sub Judge acted in propriety and correctness in restricting the examination of additional witnesses in the case.
V.Gopalkrishnan
Mathew Abraham
State of Kerala
S.S.Satheesachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
