Allowed

Rajesh v. State of Kerala

Kerala HC24 Nov 2016Crl.MC/8135/2016

Case brief

AI extract

What is this about?

The High Court granted relief to three accused persons by setting aside an order that dismissed their application for recalling Witness PW8 for cross-examination. The court directed the Magistrate to recall the witness, emphasizing that the accused must not suffer from counsel's laches and that fair trial principles favor granting opportunity to the accused.

What did the court decide?

The order dismissing the application to recall PW8 was set aside. The Magistrate was directed to recall PW8 and afford an opportunity to the accused to cross-examine him.

Rajesh Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938

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Crl.MC.No. 8135 of 2016 ()

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AGAINST CC 400/2012 of J.M.F.C.-I, MAVELIKKARA DATED 09-11-2016 CRIME NO. 352/2012 OF KURATHIKADU POLICE STATION

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PETITIONERS/ACCUSED NO.1 TO 3:

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1. RAJESH, RAJESH BHAVANAM, PONNEZHA MURI, THEKKEKARA, MAVELIKKARA.

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2. SAJI, AMBILITHARAYIL, VAZHUVADI, THAZHAKKARA P.O, MAVELIKKARA

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3. SUNISH, SUNISH BHAVANAM, CHUNAKARA, MAVELIKKARA.

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BY ADVS.SMT.GISA SUSAN THOMAS SRI.N LEELAMANI SMT.G.ASHWINI

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RESPONDENTS/COMPLAINANTS:

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROASECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. SUB INSPECTOR OF POLICE, KURATHIKADU POLICE STATION, ALAPPUZHA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. AMJAD ALI

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 8135 of 2016 () ---------------------------

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APPENDIX

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PETITIONERS' ANNEXURES

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ANNEXURE A1 COPY OF THE FINAL REPORT PRODUCED IN C.C. NO.400/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKKARA.

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ANNEXURE A2 COPY OF THE PETITION CMP NO.5668/2016 IN C.C.NO.400/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKKARA.

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ANNEXURE A3 TRUE COPY OF THE ORDER DATED 09/11/2016 IN CMP NO.5668/2016 IN C.C.NO.400/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKKARA.

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RESPONDENTS' ANNEXURES: NIL

TRUE COPY

P.A.TO JUDGE.

RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. No. 8135 of 2016

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- - - - Dated 24^th November, 2016

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ORDER

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1.The petitioners herein are the accused Nos. 1 to 3 in C.C.No.400 of 2012 on the file of the Judicial Magistrate of

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1^st Class-I, Mavelikkara.

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2.In this petition, they challenge the order passed by the learned Magistrate by which their application for recalling PW8 for the purpose of cross examination was dismissed.

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3.Heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor.

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4.On going through the materials, it is evident that on 3.11.2016, PW8 was summoned to tender evidence. The counsel appearing for the petitioners filed an application seeking adjournment as she was attending a conference elsewhere. Chief examination was completed and the case was posted on 4.11.2016. It appears that, on that

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Crl.M.C. No. 8135 of 2016 -2-

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day, a junior counsel was engaged as the defence counsel was not present on that day as well. It is seen from the order that the counsel who represented submitted that the accused did not want to cross examine PW8 and on the basis of the said representation, the evidence was closed and the case was posted for examination of the accused under Section 313 of the Code.

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5.Learned counsel submits that the accused will be prejudiced in their defence, if they are not furnished with an opportunity to cross examine the said witness.

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In this context, it will be apposite to remind oneself of the observations of the Apex Court in State of Haryana v. Ram Mehar and Others [2015(8) SCALE 192], wherein it was held that the courts are to be conscious of the position that, after all, the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of

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Crl.M.C. No. 8135 of 2016 -3-

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reasoning, it would be safe to err in favour of the accused

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getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused.

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7.Though it is evident that there are laches on the part of the counsel who appeared for and on behalf of the petitioners, the accused cannot be made to suffer. I am of the view that an opportunity is to be granted to enable the petitioners to cross examine PW8.

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8.In the result, Annexure-A3 order will stand set aside. The learned Magistrate is directed to recall PW8 and to afford an opportunity to the petitioners to cross examine the said witness.

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This petition is disposed off.

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Sd/-

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RAJA VIJAYARAGHAVAN.V.,

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JUDGE

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kp/-24.11.16

Rajesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajesh v. State of Kerala

Case brief

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What did the court decide?

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