High Court Kerala High Court

Mookayi Pradeepan vs State Of Kerala on 30 July, 2008

Kerala High Court
Mookayi Pradeepan vs State Of Kerala on 30 July, 2008
       

  

  

 
 
  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.
        -----------------------------------------------------
                 CRL.M.C.No.436 OF 2006
            -----------------------------------------------------
            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