Jiggi Rani Joseph vs State Of Kerala
2021 Latest Caselaw 1792 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

                THE HONOURABLE MR.JUSTICE V.G.ARUN

    MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                    Crl.MC.No.5555 OF 2020(D)

CC 428/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA

    CRIME NO.251/2012 OF Kattappana Police Station , Idukki

PETITIONER/S:

      1     JIGGI RANI JOSEPH
            AGED 43 YEARS, D/O.JOSEPH, RESIDING AT PADIKKARA
            HOUSE, SHANTHINAGAR, KATTAPPANA VILLAGE, IDUKKI
            TALUK, IDUKKI DISTRICT, PIN-685 508

      2     JAGGI RANI JOSEPH,
            AGED 43 YEARS, D/O. JOSEPH, RESIDING AT PADIKKARA
            HOUSE, SHANTHINAGAR, KATTAPPANA VILLAGE, IDUKKI
            TALUK, IDUKKI DISTRICT, PIN-685 508

             BY ADV. SRI.J.R.PREM NAVAZ
RESPONDENT/S:

      1     STATE OF KERALA,
            REPRESENTED BY THE PUBILC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM, PIN-682 031

      2     THE STATION HOUSE OFFICER, KATTAPPANA POLICE
            STATION, IDUKKI DISTRICT, PIN-685 508

      3     ADDL.R3.JOBIN THOMAS, S/O.GEORGEKUTTY, AGED 29
            YEARS, RESIDING AT PURAMCHIRAYIL HOUSE, CHOTTUPARA
            P.O, THOOKUPALAM KARA, UDUMBANCHOLA TALUK, IDUKKI
            DISTRICT, PIN-685 552.

             IS IMPLEADED AS PER ORDER DATED 18.01.2021 IN
             CRL.M.A.NO.2 OF 2020
             R3 BY ADV. TOM JOSE
             R3 BY ADV. SMT.GEETHA JOB(OZHUKAYIL)
             R3 BY ADV. SRI.JOBIN JOLLY
OTHER PRESENT:

            SR.PP.C.S.HRITHWIK

        THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
   14.01.2021, THE COURT ON 18.01.2021, PASSED THE FOLLOWING:
 Crl.M.C No.5555 of 2020
                                  2



                             ORDER

Dated this the 18th day of January, 2021

Petitioners are CW2 and CW3 in C.C.No.428 of

2012 pending before the Judicial Magistrate of

First Class, Kattappana. The petitioners are

aggrieved by their non-examination in the case in

spite of being summoned to give evidence. The

further grievance is that the summons was issued

on 27.11.2020 requiring the petitioner's

appearance on 30.11.2020, despite the petitioners

being employed at Qatar and that the notice was

served by affixture at the petitioners' paternal

house as provided under Section 65 of Cr.P.C.

According to the petitioners, on coming to know

about the summons they applied for leave from

their employer abroad, underwent the necessary

Covid-19 test and came down to India on 04.12.2020 Crl.M.C No.5555 of 2020

and was in quarantine. In the meanwhile, the case

was taken up on 30.11.2020 and noting the absence

of the summoned witnesses (the petitioners), the

learned Magistrate closed the prosecution

evidence. The absence of the petitioners on

30.11.2020 not being wilful, an opportunity is

sought to give evidence. According to the

petitioners, they are crucial witnesses since

their mother is the de facto complainant. The

prayer in this Crl.M.C is for a direction to the

jurisdictional Magistrate to examine the

petitioners as witnesses by invoking power under

Section 311 of Cr.P.C.

2. Sri.J.R.Prem Navaz, learned Counsel for

the petitioners highlighted the gross illegality

in the court having closed the prosecution

evidence without providing an opportunity for the

petitioners to give evidence, in spite of the Crl.M.C No.5555 of 2020

petitioners having travelled down to India during

the pandemic period. It is contended that the

court as well as the prosecution committed an

illegality in granting only three days time to the

petitioners to appear before court. According to

the learned Counsel, the prosecutor is well aware

of the fact that the petitioners are employed

abroad, but failed to bring it to the notice of

the court. It is submitted that the allegation

being that the accused had cheated the

petitioners' mother of a huge amount, the

petitioners are the most competent persons to give

evidence regarding the deception. It is contended

that necessary power is conferred on the court

under Section 311 Cr.P.C to examine the

petitioners.

3. Smt. Geetha Job, learned Counsel appearing

for the additional third respondent vehemently Crl.M.C No.5555 of 2020

opposed the prayer and submitted that the instant

case is a classic example of victimisation of an

accused by protracting the prosecution endlessly.

According to the learned Counsel, the very fact

that the instant Crl.MC is filed without

impleading the accused itself speak volumes about

the mala fide intention of the petitioners.

Drawing attention to Annexure R3(D) order sheet

pertaining to the case, it is submitted that the

case was posted for more than 67 times for

adducing prosecution evidence. It is pointed out

that out of 20 witnesses cited by the prosecution,

only 5 had turned up and after their examination,

the prosecution evidence was closed on 19.04.2018

and the case posted for Section 313 examination of

the accused. In the meantime, an application was

submitted by the de facto complainant seeking

further investigation and the prayer was rejected. Crl.M.C No.5555 of 2020

Thereupon, she approached this Court in Crl.M.C

and later withdrew the case. Thereafter, a writ

petition was filed which ended in dismissal, as

evidenced by Ext.R3(I) judgment. In Ext.R3(I),

this Court has observed that the attempt of the

petitioner appears to be protraction of the trial,

for reasons best known to her. That, the accused

was examined under Section 313 and had submitted a

statement under Section 315 Cr.P.C and after

examination of the defence witnesses, the case is

now posted for hearing. The learned Counsel

submitted that the pendency of the case from 2012

onwards had taken its toll on the accused's life

and further protraction for frivolous reasons

would cause substantial hardship to the accused.

4. Even though I find substance in the

submission of the learned Counsel for the

petitioners that they were not given sufficient Crl.M.C No.5555 of 2020

time to appear before court pursuant to Annexure

A1 summons, that cannot be a reason for

examination of the petitioners by invoking the

power under Section 311 Cr.P.C. All the more so,

when the proceedings reveal that the case had been

adjourned more than 60 times due to the absence of

the petitioners to appear on the dates on which

they were summoned to give evidence. The

circumstances under which the prosecutor had made

the application for issuing summons to the

petitioners, after closure of the prosecution

evidence and in the midst of Section 313

examination of the accused, is not forthcoming.

Moreover, the prosecution, at whose instance the

petitioners were summoned, is not aggrieved by

their non-examination. The chequered history of

the case indicate a concerted effort to protract

the trial. It need not be restated that justice is Crl.M.C No.5555 of 2020

not the monopoly of the complainant alone.

For the aforementioned reasons, I find no

merit in the case and accordingly, the Crl.M.C is

dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ Crl.M.C No.5555 of 2020

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A1 THE TRUE COPY OF THE SUMMONS SERVED ON TO THE PETITIONERS DATED 27.11.2020 UNDER SECTION 65 OF THE CODE OF THE CRIMINAL PROCEDURE.

ANNEXURE A2 THE TRUE COPY OF THE AIR TICKETS IN WHICHTHE PETITIONERS CAME DOWN TO INDIA ON 04.12.2020.

ANNEXURE A3 THE TRUE EXTRACT OF THE ECOURT RECORDS OF C.C. NO. 428 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS KATTAPPANA, IDUKKI DISTRICT DATED 27.11.2020.

ANNEXURE A4 THE TRUE EXTRACT OF THE E-COURT RECORDS OF C.C.NO. 428 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS KATTAPPANA, IDUKKI DISTRICT DATED 30.11.2020.

RESPONDENT'S/S EXHIBITS:

ANNEXURE R3(a): A TRUE COPY OF THE FIR AND FIS IN CRIME NO.251/2010 OF KATTAPPANA POLICE STATION.

ANNEXURE R3(b): A TRUE COPY OF THE 161 STATEMENT OF THE COMPLAINANT.

ANNEXURE R3(c): A TRUE COPY OF THE ADDITIONAL 161 STATEMENT OF THE DEFACTO COMPLAINANT DATED 08/06/2012.

ANNEXURE R3(d): A TRUE COPY OF THE PROCEEDINGS SHEET IN C.C.NO.428/2012 FROM 28/02/2015 TO 30/11/2017.

Crl.M.C No.5555 of 2020

ANNEXURE R3(e): A TRUE COPY OF THE CASE STATUS REPORT OF THE ABOVE CASE FROM 16/05/2017 TO 11/12/2020.

ANNEXURE R3(f): A TRUE COPY OF PETITION PREFERRED UNDER SECTION 173(8) OF CR.P.C. BY THE DEFACTO COMPLAINANT {CW1}.

ANNEXURE R3(g): A TRUE COPY OF THE ORDER DATED 12/01/2018 IN C.M.P.NO.2738/2017 IN C.C.NO.428/2012.

ANNEXURE R3(h): A TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN CRL.M.C.NO.481/2019 DATED 28/01/2019.

ANNEXURE R3(i): A TTRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WPC.NO.3487/2019 DATED 06/02/2019.

ANNEXURE R3(j): A COPY OF THE APPLICATION SUBMITTED BY THE S.I. OF POLICE, KATTAPPANA POLICE STATION.

ANNEXURE R3(k): A TRUE COPY OF THE PROCEEDINGS OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA DATED 29/03/2019.

ANNEXURE R3(l): A COPY OF THE CLAIM PETITION PREFERRED AS C.M.P.NO.550/2018 IN C.C.NO.428/2012.

ANNEXURE R3(m): A TRUE COPY OF THE 161 STATEMENT OF CW8, JOBY, OPERATION OFFICER OF ICICI DATED 24/04/2010.

ANNEXURE R3(n) A TRUE COPY OF THE GOLD PURCHASE {ANNEXXURE R3 N1 TO RECEIPTS (8 IN NUMBERS) BY THE ANNEXURE R3 N8): PETITIONER / ACCUSED THROUGH ACCOUNT OF THE PETITIONER / ACCUSED BY THE DEFACTO COMPLAINANT AND OTHER PROSECUTION Crl.M.C No.5555 of 2020

WITNESSES.