IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4716 of 2008()
1. T.P. PAVITHRAN, SON OF DAMODARAN
... Petitioner
Vs
1. R.K. RAGHAVAN, SON OF ANDI, PANUNDA,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/06/2009
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.M.C. No. 4716 of 2008
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Dated this the 4th day of June, 2009.
O R D E R
Complainant in C.C.No.230/2006 filed this petition
under Section 482 of Code of Criminal Procedure to quash
Annexure V and VI orders passed by Additional Chief
Judicial Magistrate, Thalassery. Annexure V order was
passed in CMP No.3139/2008 filed under Section 311 of
Code of Criminal Procedure to receive documents at the
stage of posting the case for cross-examination of
prosecution witnesses, after framing of charge under
Section 246 of Code of Criminal Procedure. Annexure VI
order was passed in CMP No.3140/2008, a petition filed
under Section 91 of Code of Criminal Procedure to direct
the accused to produce documents. Both the petitions were
dismissed.
2. Learned Counsel appearing for petitioner and
learned Public Prosecutor were heard. There was no
representation for first respondent.
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3. CMP No.3139/2008 was filed under Section 311 of
Code of Criminal Procedure to receive additional
documents, which were not produced at the time when
evidence of prosecution witnesses were recorded as
provided under Section 244 of Code of Criminal Procedure.
Case of the petitioner in Annexure II petition is that earlier
the accused had undertaken to produce relevant documents
and accounts before the Court, but he deliberately did not
produce them as undertaken and later he destroyed some
documents and created some false documents and the
documents produced along with the petition are necessary
to prove the prosecution case and those documents were
omitted to be produced earlier and hence they are to be
received. Under Annexure V order, Magistrate dismissed
the petition holding that those documents were not
produced at the time when evidence was recorded under
Section 244 of Code of Criminal Procedure and when the
case is posted for cross-examination of prosecution
witnesses under Section 246(5), the documents cannot be
received and as it would cause prejudice to the Counsel.
Crl.M.C.No.4716/2008
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Learned Counsel appearing for petitioner pointed out that
the documents had earlier agreed to be produced by the
accused but he deliberately did not produce the documents
and those documents are relevant and necessary to decide
the question involved in the case and in such circumstances
the documents should have been received in evidence.
4. Section 311 of Code of Criminal Procedure
enables the Magistrate at any stage of trial to summon any
person as a witness and examine, if it appears to be
essential to the just decision of the case. While dismissing
the application in Annexure V order, the Magistrate did not
consider the question whether the documents are essential
for a just decision of the case. The petition was dismissed
on technical reasons stating that documents were not
produced earlier and at the stage of cross-examination of
prosecution witnesses under Section 246(5) of Code of
Criminal Procedure, the documents cannot be produced.
Section 311 of Code of Criminal Procedure enables the
Magistrate at any stage of the trial to summon any person
and examine as a witness or to recall and reexamine
Crl.M.C.No.4716/2008
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a witness already examined, if it appears to him that it is
necessary for a just decision in the case. The Magistrate
should not have dismissed the petition without considering
the crucial aspect, viz. whether it is necessary for a just
decision of the case. As this aspect was omitted to be taken
note of by the Magistrate, Annexure V order is quashed.
The Magistrate is directed to reconsider and pass
appropriate order in CMP No.3139/2008 in accordance with
law in the light of the above observations after hearing the
prosecution and the defence.
5. CMP No.3140/2008 was rightly dismissed by the
Magistrate holding that the accused cannot be directed to
produce documents as sought for. The prayer is to direct
the accused to produce the documents under Section 91 of
Code of Criminal Procedure, which is not maintainable. I
find no reason to interfere with Annexure VI order.
Crl.M.C. is disposed of accordingly.
M.SASIDHARAN NAMBIAR
JUDGE
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