Full Judgment
Crl.M.C.No.3337/2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 25TH DAY OF APRIL 2023 / 5TH VAISAKHA, 1945 CRL.MC NO. 3337 OF 2023 PETITIONER/ACCUSED: MUHAMMADALI, AGED 62 YEARS, S/O.ASAINAR, CHEERAMATH HOUSE KOMPAMKALLU, EDAPATTA, MALAPPURAM DISTRICT, PIN - 679 326. BY ADV.SOJAN MICHEAL RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682 031. BY SMT.MAYA M.N, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.04.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.3337/2023 2
ORDER
The petitioner is the accused in C.C.No.1406 of 2015 on the
file of the Judicial First Class Magistrate Court-II, Perinthalmanna. The aforesaid crime was registered against him for the offences punishable under Section 304A IPC. The allegation against the petitioner is that, due to improper electrical wiring in the poultry farm conducted by the petitioner, one of his employees died due to electrocution.
2. In the said case, the trial was conducted and the
prosecution evidence was completed. When the matter was posted for examination of the accused under Sections 313 Cr.P.C., the petitioner submitted an application under Section 311 Cr.P.C., praying for recalling PW6 and PW12. The reasons stated by the petitioner was that, when they were examined, they could not be cross examined. However, the aforesaid application which was numbered as C.M.P.No.938 of 2023, was dismissed as per Annexure-2 order and this application is submitted in such circumstances.
Crl.M.C.No.3337/2023 3
3. Heard Sri.Sojan Micheal, learned counsel for the petitioner and Smt.Maya M.N, learned Public Prosecutor for the State.
4. The learned counsel for the petitioner submits that,
examination of both of these witnesses is absolutely necessary. It is pointed out that, PW6 is the Secretary of the Edappatta Grama Panchayath who was examined to prove the ownership of the poultry farm wherein the incident occurred. As far as PW12 is concerned, he is the District Electrical Inspector, who was examined to prove the report prepared regarding the improper
wiring at the poultry farm. According to him, the aforesaid witnesses are crucial witnesses, since the cause of incident was sought to be proved by the prosecution mainly through them. Therefore, the lack of proper cross examination of the said witnesses would cause serious prejudice to him.
5. On the other hand, the learned Public Prosecutor
would oppose the aforesaid contention. I have gone through the records. It is true that the petitioner did not cite proper reasons as to why he did not cross-examine the aforesaid witnesses while their chief examination was done. However, the fact remains Crl.M.C.No.3337/2023 4 that both the said witnesses are crucial witnesses and they were not properly cross examined by the accused.
6. In such circumstances, in order to avoid the prejudice
that is likely to cause to the petitioner/accused on account of the lack of cross examination of the said witnesses, I am of the opinion that an opportunity is to be granted to him. However, it shall be subject to the condition that the petitioner shall bear the expenses for recalling the aforesaid witnesses. Hence, this Crl.M.C. is allowed and Annexure-2 order is set aside. The learned Magistrate is directed to recall PW6 and PW12 by issuing summons subject to the condition that the petitioner shall pay an amount of Rs.3,000/- (Rupees three thousand only) to both the witnesses as referred above. Sd/- ZIYAD RAHMAN A.A. JUDGE DG/25.4.23 Crl.M.C.No.3337/2023 5 APPENDIX OF CRL.MC 3337/2023 PETITIONER ANNEXURES Annexure1 TRUE COPY OF THE PETITION DATED 24.03.2023 IN CC NO: 1406/2015 ON THE FILE OF JUDICIAL FIRST-CLASS MAGISTRATE COURT -II, PERINTHALMANNA Annexure2 CERTIFIED COPY OF THE ORDER DATED 30.03.2023 IN CMP NO: 938/2023 IN CC NO: CLASS MAGISTRATE COURT -II, PERINTHALMANNA