IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 436 of 2006()
1. MOOKAYI PRADEEPAN, S/O.CHATHUKUTTY,
... Petitioner
2. MOOKAYI SAJEEVAN, S/O.CHATHUKUTTY,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.R.SURENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :30/07/2008
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.436 OF 2006
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DATED THIS THE 30th DAY OF JULY, 2008
O R D E R
Petitioners 1 and 2 herein are accused Nos.1 and 2
respectively in C.C.No.378/2002 pending on the file of Judicial
First Class Magistrate’s Court, Kuthuparamba. The case alleged
against the petitioners and other accused is pending before the
concerned Magistrate’s Court for the offences punishable under
Sections 143, 147, 148, 447, 427 and 506(ii) read with Section
149 of Indian Penal Code. It is alleged in this petition that the
prosecution cited 7 witnesses as per the memo of evidence filed
along with the charge sheet. Some of the witnesses mentioned
therein were examined as PWs 1 to 5 and given up two witnesses
mentioned therein. Thereafter, the prosecution has filed a
petition as Crl.M.P.No.3185/05 for examining the Advocate-
Commissioner in a civil case, O.S.No.120/02 on the file of
Munsiff’s Court, Kuthuparamba without furnishing an additional
witness list. Copy of that petition is produced as Annexure A.
The petitioners herein filed a counter opposing that petition, copy
CRL.M.C.No.436/06 -2-
of which is produced as Annexure B. It was contended that no reason
whatsoever has been stated by the prosecution for not including the
name of the said witness in the witness list who was not questioned by
the Investigating Officer earlier. It was also stated that the said
Commissioner’s report and plan were filed by an ex parte
Commissioner and the same were remitted by the civil court which is
not finalised. Further, the Investigating Officer has furnished the
scene mahazar witnesses who are available. Annexure C is the true
copy of the order in Crl.M.P.No.3185/05 in C.C.No.378/02 passed by
the learned Magistrate which is passed without considering any of the
contentions raised by the petitioners herein in their counter statement,
Annexure B. In these circumstances, this petition is filed by the
petitioners 1 and 2/accused 1 and 2 in C.C.No.378/02 to quash the
order of the learned Magistrate in Crl.M.P.No.3185/05 dated
18.1.2006, Annexure C.
2. Heard the learned counsel appearing for the petitioners and
also the learned Public Prosecutor.
3. On a perusal of the records, it is evident that the learned
Magistrate has passed the impugned order, Annexure C without
applying the mind and without considering and answering the
CRL.M.C.No.436/06 -3-
contentions raised by the petitioners herein who are accused 1 and 2
in C.C.No.378/02. The duty of the prosecution is to produce the
evidence before the court to find out the truth to meet the ends of
justice and not to gather evidence somehow or other with a view to
convict the alleged offenders. The learned Magistrate has not
considered the stipulations under Section 242 of Cr.P.C. Thus, I find
that the procedure followed by the concerned Magistrate is not proper
and fair. It is admitted by the learned Public Prosecutor and as stated
by the learned counsel for the petitioners that the said witness,
Advocate-Commissioner was already examined before the concerned
Magistrate’s Court in chief on 15.2.2006. This petition is filed before
this Court under Section 482 of Cr.P.C. on 14.2.2006 along with a stay
petition, that is, Crl.M.A.713/06. In that petition, this Court has
passed an order on 15.2.2006 as follows:
“Notice. Trial of the Advocate Commissioner will stand
adjourned for a period of two weeks, in case he is not already
examined. It is made clear that if the witnesses are already
examined, the stay order will not operate.”
According to the learned counsel for the petitioners, the said order
passed by this Court on 15.2.2006 was orally communicated to the
concerned counsel over telephone and at that time, the chief
examination was going on. In the light of the interim order passed by
CRL.M.C.No.436/06 -4-
this Court, that witness was not cross-examined by the concerned
counsel. But the learned Magistrate recorded that “no cross” and
posted the case for 313 questioning.
4. In these circumstances, this Court is compelled to pass an
order giving liberty to the petitioners 1 and 2 in this petition who are
accused Nos.1 and 2 in C.C.No.378/02 pending on the file of Judicial
First Class Magistrate’s Court, Kuthuparamba to cross-examine the
Advocate-Commissioner. The contentions raised by the petitioners in
this petition are left open.
The Crl.M.C. is disposed of accordingly.
M.C.HARI RANI, JUDGE.
dsn