Kamarudeen Rawther vs State Of Kerala
2021 Latest Caselaw 15076 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
            THE HONOURABLE MR. JUSTICE ASHOK MENON
    FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                    CRL.MC NO. 3009 OF 2021
     AGAINST THE ORDER/JUDGMENT IN CC 267/2012 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES),PUNALUR, KOLLAM
PETITIONERS/RESPONDENTS/ACCUSED NOS.1 & 2:

    1     KAMARUDEEN RAWTHER,
          AGED 47 YEARS
          S/O. THANKAPPA RAWTHER,
          PARAKUZHIYIL VEEDU,
          NEAR BSNL TOWER, EDAPALAYAM,
          ARYANKAVU VILLAGE, KOLLAM DISTRICT.

    2     SHAMSUDEEN RAWTHER @ PODIMON,
          AGED 40 YEARS, S/O. THANKAPPA RAWTHER,
          PARAKUZHIYIL VEEDU, NEAR BSNL TOWER,
          EDAPALAYAM, ARYANKAVU VILLAGE,
          KOLLAM DISTRICT.

          BY ADVS.
          SUBHASH SYRIAC
          S.SREEJITH


RESPONDENTS/STATE/PETITIONER:

    1     STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          ERNAKULAM-682 031.

    2     THE ASSISTANT PUBLIC PROSECUTOR,
          JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
          PUNALUR, PUNALUR P.O.,
          PUNALUR, KOLLAM DISTRICT-691 305.



          SRI.C.S.HRITHWIK-SR PP



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.M.C.No.3009 of 2021

                                2




                             ORDER

Dated this the 16th day of July, 2021

The petition is filed challeging the order of the

Judicial First Class Magistrate Court-II (Forest offences),

Punalur, in CMP No.2651/2020 in CC No.267/2012 which

permitted the prosecution to produce two GDs in connection

with the case after the examination of the accused under

Section 313 Cr.P.C.

2. The learned Magistrate as per Annexure-A9 allowed

request made by the prosecution, stating that the one of the

GDs, which was produced by them could not be marked

because only a photostat copy was produced and Ext.P13 was

marked subject to proof. And, therefore, it was necessary

that the original GD also may be verified. The offence is

under Section 353 IPC and therefore, the prosecution is

bound to prove that the Police Officers were on duty.

3. The learned counsel for the petitioners submit that Crl.M.C.No.3009 of 2021

no reasons are mentioned in Annexure-A7 for the production

of document at a belated stage. The application, however

which is accompany Annexure-A7 indicates that the photostat

copy was not only submitted and therefore, the original GD is

being produced. The learned counsel now submits that he has

no objection in marking the 1st document, which is the GD

pertaining to Thenmala Police Station because the photostat

copy was already produced and he may be given opportunity

to cross examine the witness. But, he has very serious

objections regarding the production of GD pertaining to

Kadakkal Police Station because that was not produced at the

time of cross examination or during the evidence and it is a

new piece of evidence and no satisfactory explanation is

forthcoming regarding the related production of that

document.

4. Heard the learned counsel appearing for the

petitioners and the learned Public Prosecutor. The offence is Crl.M.C.No.3009 of 2021

under Seection 353 IPC. In case, the GD is not marked, it

would definitly affect the prosecution case adversely. The GD

pertaining to Thenmala was produced but only a photostat

copy was produced. And, therefore, it was only marked as

subject to proof. And, therefore, I find here no reason to

disallow the request of the prosecution to produce the original

GD. As regards the GD pertaining to Kadakkal Police Station,

it is stated by the prosecution that it is connected with the

duty which was assigned to the Policemen. The duty of the

officer has to be proved through that GD also and because it

was cross examined it is the obligation of the prosecution to

clear that now. And, therefore, an opportunity was sought to

produce the GD pertaining to maintaining the check post

within the jurisdiction of the Kadakkal Police Station.

I find that no grave injustice would be done to the

accused by letting these two documents in evidence. The

accused would definitly have the opportunity of cross Crl.M.C.No.3009 of 2021

examine regarding the genuineness or otherwise of those

documents during the cross examinations. And, therefore,

there is no reason to interfere with the Annexure-A9 of

impugned order of the learned Magistrate.

The Criminal M.C. is therefore dismissed.

Sd/-

ASHOK MENON JUDGE

NR/16/07/2021 Crl.M.C.No.3009 of 2021

APPENDIX OF CRL.MC 3009/2021

PETITIONER ANNEXURE Annexure A1 CERTIFIED COPY OF THE FINAL REPORT IN CC NO.267/2012 ON THE FILE OF THE JFMC-II, PUNALUR.

Annexure A2 CERTIFIED COPY OF THE GD OF THE AYRANKAVU OUTPOST DATED 15/12/2010.

Annexure A3 TRUE COPY OF THE DEPOSITION OF PW6 DATED 01/10/2020 IN CC 267/2012 ON THE FILE OF JFMC-II, PUNALUR.

Annexure A4 TRUE COPY OF THE DEPOSITION OF PW1 DATED 22/07/2015 IN CC 267/2012 ON THE FILE OF JFMC-II, PUNALUR.

Annexure A5 TRUE COPY OF THE PETITION IN CMP NO.2651/20 DATED 12/11/2020 FILED BY THE 2ND RESPONDENT IN CC NO.267/2012 ON THE FILE OF THE JFMC- II, PUNALUR.

Annexure A6 TRUE COPY OF THE OBJECTION DATED 02/12/2020 FILED BY PETITIONERS IN CMP NO. 2651/2020 IN CC NO.267/12 BEFORE JFCM-II, PUNALUR.

Annexure A7 CERTIFIED COPY OF THE WITNESS AND DOCUMENT SCHEDULE PRODUCED BY THE 2ND RESPONDENT IN CMP NO. 2651/2020 IN CC NO.267/12 BEFORE JFCM-II, PUNALUR.

Annexure A8 TRUE COPY OF THE OBJECTION DATED 18/01/2021 FILED BY PETITIONERS IN CMP NO. 2651/2020 IN CC NO.267/12 BEFORE JFCM-II, PUNALUR.

Annexure A9 CERTIFIED COPY OF THE ORDER DATED 17/03/2021 IN CMP NO.2651/2020 IN CC NO.267/2012 BEFORE THE JFMC-II, PUNALUR.

//TRUE COPY// PA TO JUDGE