Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 1ST DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 CRL.MC NO. 8803 OF 2023 CRIME NO.427/2018 OF BALUSSERY POLICE STATION, KOZHIKODE AGAINST THE ORDER IN CR.M.APPL.573/2023 IN SC 580/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AG
PETITIONER/ACCUSED NO.1: RINISHA AGED 27 YEARS VALIYAMALAKUZHIYIL (H), PANANGAD, BALUSSERY, KOZHIKODE, PIN - 673 612. BY ADVS. ALEX ABRAHAM SWETHA R. ARJUN SREEDHAR ARUN KRISHNA DHAN T.K.SANDEEP HARIKRISHNAN P.B. RESPONDENT/COMPLAINANT/STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. BY ADV. SRI VIPIN NARYAN (SR PP) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC NO.8803 OF 2023 2
ORDER
Petitioner has approached this Court challenging Annexure-A2 order in CMPNo.573/2023 in S.C.No.580/2019 to the extent it rejects the application filed by the petitioner under Section 311 of Code of Criminal Procedure for summoning PW24 and PW27 for further examination, while allowing the application to further examine PW2 and PW25.
2. Learned counsel for the petitioner/1st accused
would submit that the petitioner/1st accused faces a charge of having committed offence under Sections 302 and 120 B of the Indian Penal Code and Section 75 of the Juvenile Justice Act. It is submitted that if the charges are proved, the petitioner, who is the 1st accused, can be even sentenced to
capital punishment. It is submitted that the case was conducted by a legal aid counsel and after a new counsel was appointed for the conduct of the trial on behalf of the petitioner/1st accused, he found that there are certain shortcomings in the conduct of the trial in so far as it relates to the evidence tendered by PW2, PW24,PW25 and PW27. It
Crl.MC NO.8803 OF 2023 3 is submitted that the court allowed the summoning of PW2 and PW25 for further examination finding that there was no cross-examination of those witness and rejected the application in so far as it relates to PW24 and PW27 on the
ground that they were cross-examined in detail. It is submitted that the approach of the court may not be fully correct, as the question to be considered was not whether there was any cross-examination or not. It is submitted that the court should have considered as to whether any serious prejudice would be caused to the accused by not allowing the
application for further examination. It is submitted that considering the fact that the petitioner/1st accused is facing serious charges and in order to ensure that the petitioner obtains a fair trial, it is absolutely essential to allow the application filed under Section 311 of Cr.P.C in so far as it relates to PW24 and PW27 also.
3. Learned Senior Public Prosecutor opposes the grant of relief. He states that since PW24 and PW27 were cross- examined at length by the defence counsel, there is no merit in the application filed under Section 311 of Cr.P.C. It is Crl.MC NO.8803 OF 2023 4
submitted that merely because the charges are grave that cannot be a ground to permit petitions filed under Sections 311 of Cr.P.C. for frivolous reasons. It is submitted that the fact that the court had permitted the summoning of PW2 and PW25 for further examination will indicate that the court had applied its mind to the application and the application was allowed to the extent necessary.
4. Having heard the learned counsel for the petitioner
and the learned Senior Public Prosecutor, I am of the opinion that in the facts and circumstances of the case, the application filed under Section 311 of Cr.P.C. can be allowed in so far as it relates to PW24 and PW27 as well. The petitioner faces serious charges under Sections 302 and 120B of the Indian Penal Code and Section 75 of the Juvenile Justice Act. According to the learned counsel for the petitioner, the case was conducted by a legal aid counsel at the time when PW24 and PW27 were cross-examined and the counsel now appointed for the defence of the petitioner/1 st accused has found that further cross-examination was essential on some aspects in respect of PW24 and PW27. It is Crl.MC NO.8803 OF 2023 5 for this purpose that the petition under Section 311 of Cr.P.C was filed. Moreover, PW27 is the investigating officer. It will only be appropriate that the investigating officer is also allowed to be summoned for further examination, since the court has already permitted the further examination of PW2 and PW25, Therefore, in the facts and circumstances of the case, I set aside Annexure-A2 order to the extent it rejects the application filed by the petitioner under Section 311 of Cr.P.C. to summon PW24 and PW27 for further examination. I direct that PW24 and PW27 shall also be summoned for further examination. Crl.M.C.is disposed of as above. Sd/- GOPINATH P. JUDGE ats Crl.MC NO.8803 OF 2023 6 APPENDIX OF CRL.MC 8803/2023 PETITIONER’S ANNEXURES Annexure-A1 TRUE COPY OF THE APPLICATION IN CMP NO. 573 OF 2023 IN S.C. NO. 580 OF 2019 DATED 10-10-2023 BEFORE THE ADDITIONAL DISTRICT AND SESSIONS COURT FOR THE TRIAL CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN, KOZHIKODE Annexure-A2 TRUE COPY OF THE ORDER IN CMP NO. 573 OF 2023 IN S.C. NO. 580 OF 2019 DATED 11-10-2023 BY THE ADDITIONAL DISTRICT AND SESSIONS COURT FOR THE TRIAL CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN, KOZHIKODE