Abdul Rahman Kunju vs State of Kerala, Pushpa Kumar and Raja Kumari

M. Sasidharan Nambiar, J.—The sixth charge witness in C.C. No. 482/2003 on the file of Judicial First Class Magistrate''s Court-II, Kottarakkara was the Investigating Officer. Annexure-V proceeding paper of the learned Magistrate shows that in spite of non bailable warrant issued to the Investigating Officer, through Superior Officer, thrice, he did not turn up. Ultimately, on 22.6.2009, his evidence was dispensed with and the accused were questioned u/s 313 of Code of Criminal Procedure on 16.7.2009. The case was thereafter posted for arguments. Prosecutor filed Annexure-II petition (C.M.P. No. 8964/2009) u/s 311 of Code of Criminal Procedure to re-open the evidence for examination of CW6. By Annexure-III order, learned Magistrate dismissed the petition holding that the witness did not turn up, in spite of repeated steps taken. Petitioner, the defacto complainant, filed Crl. M.C. No. 194/2010 to quash Annexure-III order. By Annexure-IV order, that petition was disposed on the submission of the learned Counsel appearing for the petitioner that judgment in the case has been pronounced. This petition is filed to quash Annexure-III order contending that earlier representation, based on which Annexure-IV order was passed, was a mistake and the case is even now pending. Annexure-V order sheet shows that even on 14.5.2010, the case was not disposed and was pending. On filing this petition, an order of stay was granted on 25.6.2010, which is continuing since then.

Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard.

Annexure-III order does not show that learned Magistrate considered the question whether for a just decision of the case examination of CW6, the Investigating Officer, is necessary or not. The petition filed u/s 311 of Code of Criminal Procedure was dismissed without considering the material and relevant aspects. It cannot be said that evidence of the Investigating Officer is not relevant or necessary for a just decision of the case, if there is other evidence in support of the prosecution case.

In such circumstances, petition is disposed. Annexure-III order is quashed. Judicial First Class Magistrate-II, Kottarakkara is directed to reconsider C.M.P. No. 8964/2009 and pass appropriate order in accordance with law. It is made clear that if the evidence of the witness, sought to be examined, is necessary for a just decision of the case, learned Magistrate to exercise the jurisdiction u/s 311 of Code of Criminal Procedure.