Allowed

Niveditha v. Selvadasan

Kerala HC12 Jan 2023Crl.MC/151/2023

Case brief

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What is this about?

The High Court of Kerala allowed a Criminal Miscellaneious Petition challenging the dismissal of an application under Section 311 of Cr.P.C. The Court set aside the impugned order, directed the lower court to allow examination of a witness and cross-examination of a respondent, and imposed a cost of Rs. 2,500 on the petitioner.

What did the court decide?

Annexure H order set aside; lower court to permit examination of witness No.4 and cross-examination of 1st respondent within 3 weeks upon payment of Rs. 2,500 cost.

Niveditha Vs Selvadasan — Pension and Retirement Benefits | Kerala HC (2023)

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CRL.MC NO. 151 OF 2023

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
CRL.MC NO. 151 OF 2023

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AGAINST MC 37/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS, IRINJALAKUDA

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PETITIONER:

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NIVEDITHA, AGED 26 YEARS
D/O SELVADASAN, VARILLANIKAL HOUSE,
KUNNATHUPADOM DESOM, VARANDARAPALLY VILLAGE,
MUKUNDAPURAM TALUK,
THRISSUR DISTRICT, PIN - 680303
BY ADV P.YADHU KUMAR

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RESPONDENTS:

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1SELVADASAN, AGED 54 YEARS
S/O PALANIMALA, DHATHATHRAYA HOUSE,
KANYAD DESOM, OOTTARA, VADAVANNUR PO,
PALAKKAD DISRTICT, PIN - 678504
2STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN – 682031

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R1 BY SRI.RAJESH CHAKYAT
R2 BY SMT.T.V.NEEMA-SR.PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

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12.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 151 OF 2023

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O R D E R

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Annexure H order dismissing an application filed under

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Section 311 of Cr.P.C to reopen the evidence is under challenge in this Crl.M.C.

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The petitioner herein is the daughter of the 1^st

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respondent. The petitioner filed a petition under Section 12 of the Protection of Women from Domestic Violence Act (for short ‘the

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DV Act’) against the 1^st respondent at the Judicial First Class Magistrate Court, Irinjalakkuda (for short ‘the court below’) as M.C.No.37/2017.

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On the side of the petitioner, a school teacher was cited

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as witness No.4. But, since the petitioner did not produce the said witness, she could not be examined. Thereafter, the matter was posted for the evidence of the 1^st respondent. He was examined as

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DW1. The petitioner did not cross examine the 1^st respondent.

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CRL.MC NO. 151 OF 2023

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Hence, the petitioner filed a petition under Section 311 of Cr.P.C to examine witness No.4 and also to summon the 1^st respondent so as to cross examine him, as Crl.M.P.No.9481/2022. The court below,

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after hearing both sides, dismissed the petition as per Annexure H order.

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I have heard the learned counsel for the petitioner as

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well as the learned counsel for the 1^st respondent.

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It is true that several opportunities were given by the court below to the petitioner to produce witness No.4. It is also true that even though opportunity was given to the petitioner to cross examine the 1^st respondent, she failed to cross examine him. However, considering the entire facts and circumstances of the case, I am of the view that an opportunity has to be given to the petitioner to examine witness No.4 and also to cross examine the 1^st respondent. Since, there was failure on the part of the petitioner to act in time, the petitioner has to pay a cost to the 1^st respondent.

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CRL.MC NO. 151 OF 2023

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In the result, Annexure H order is set aside. The court below shall give an opportunity to the petitioner to examine the witness No.4 and also to cross examine the 1^st respondent on condition that the petitioner shall pay a cost of Rs.2,500/- (Rupees two thousand five hundred only) to the 1^st respondent. The court below shall complete the examination within a period of three weeks from the date of receipt of the copy of this order. It is made clear that the

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petitioner has to produce the witness No.4 at the court below.

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The Crl.M.C is allowed.

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Sd/-

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DR. KAUSER EDAPPAGATH JUDGE

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CRL.MC NO. 151 OF 2023

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APPENDIX OF CRL.MC 151/2023

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`PETITIONER ANNE`	`XURES`
`Annexure A`	`A TRUE PHOTOCOPY OF THE INTERIM ORDER` `PASSED BY JUDICIAL FIRST CLASS MAGISTRATE` `COURT, IRINJALAKUDA DATED 2.08.17`
`Annexure B`	`THE TRUE PHOTOCOPY OF THE OBJECTION DATED` `31.8.2017.`
`Annexure C`	`A TRUE PHOTOCOPY OF THE JUDGEMENT OF` `HON'BLE HIGH COURT OF KERALA IN OP (CRL)` `377/2019 DATED 29.8.2019`
`Annexure D`	`THE TRUE PHOTOCOPY OF THE ORDER IN CRL.` `APPEAL 17/2021, PASSED BY DISTRICT COURT,` `THRISSUR DATED 15.9.2021.`
`Annexure E`	`A TRUE PHOTOCOPY OF THE JUDGEMENT OF` `HON'BLE HIGH COURT IN OP (CRL)` `NO.397/2021 DATED 24.8.2022`
`Annexure F`	`A TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT` `FILED BY THE PETITIONER DATED 29/09/2022.`
`Annexure G`	`A TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT` `FILED BY THE RESPONDENT DATED 15/12/2022.`
`Annexure H`	`THE TRUE PHOTOCAPY OF THE ORDERS PASSED` `BY THE LEARNED MAGISTRATE OF` `IRINJALAKKUDA MAGISTRATE COURT IN CRL M.P` `NO. 9481/2022 IN MC NO.37/2017 DATED` `28/12/2022.`

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RESPONDENTS ANNEXURES: NIL

Niveditha v. Selvadasan

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Niveditha v. Selvadasan

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