Sajeer vs State Of Kerala
2022 Latest Caselaw 12239 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
                      CRL.MC NO. 9427 OF 2022
 AGAINST THE ORDER/JUDGMENT IN CRL.M.P.NO.396/2022 IN SC 816/2018
                      OF SUB COURT, CHERTHALA
PETITIONER/ACCUSED:

          SAJEER
          AGED 37 YEARS
          S/O MOITHEEN PICH,
          VAREKATTUVELI HOUSE
          CMC XIII, CHERTHAL NORTH VILLAGE
          CHERTHALA P.O
          ALAPPUZHA, PIN - 688524
          BY ADV C.J.VARGHESE VINU


RESPONDENTS/COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, PIN - 682031
    2     EXCISE INSPECTOR
          CHERTHALA RANGE
          CHERTHALA.
          PIN 688524
          SRI.G.SUDHEER, PUBLIC PROSECUTOR


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 9427 OF 2022
                               2

                          ORDER

Dated this the 22nd day of December, 2022

This is a petition filed under Section 482 of the Code of

Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.'

for convenience), challenging order in Crl.M.P.No.396/2022

on the file of the Assistant Sessions Judge, Cherthala.

2. Heard the learned counsel for the petitioner as

well as the learned Public Prosecutor on admission.

3. The petitioner, who is the accused in

S.C.No.816/2018, filed Crl.M.P.No.396/2022 to recall PW

Nos.1, 2 and 5, on the ground that the counsel for the

accused failed to cross-examine the said witnesses, for and

on behalf of the accused, since he had taken his mother to

the hospital on the dates of their examination. But, the

learned Assistant Sessions Judge dismissed the application

on the ground that the case was listed for trial on 03.12.2022 CRL.MC NO. 9427 OF 2022

and the counsel was well aware of the trial.

4. On perusal of the order impugned and after

hearing both sides, it is brought to the notice of this Court

that, now the case stands posted to record statement of the

accused under Section 313 of Cr.P.C. and there was no

cross-examination insofar as the evidence given by PW

Nos.1, 2 and 5 in this case. Eventhough the attitude of the

counsel in not cross-examining the witnesses on the dates

of their examination in chief cannot be justified, the same

shall not be allowed to adversely affect the fate of the

accused without an opportunity of fair trial. In view of the

matter, I am inclined to set aside the order impugned and

allow the petition, subject to payment of cost of Rs.2,000/-

by the petitioner.

Therefore, there shall be a direction to the learned

Assistant Sessions Judge, Cherthala to recall PW Nos.1, 2

and 5 on a day during the 3rd week of January, 2023, with CRL.MC NO. 9427 OF 2022

opportunity to the learned counsel for the accused to cross-

examine the witnesses and to elicit his defence case,

subject to payment of cost of Rs.2,000/- at District Legal

Services Authority, Alappuzha. The petitioner is directed to

file receipt or bank slip showing remittance of cost, within

seven days from today before the trial court on or before

03.01.2023.

On failure to pay the cost, as directed, within time, the

impugned order shall stand revived and this Crl.M.C. stands

dismissed.

Registry is directed to forward a copy of this order to

the court below concerned, within seven days, for

information and compliance.

Sd/-

A. BADHARUDEEN JUDGE nkr CRL.MC NO. 9427 OF 2022

APPENDIX OF CRL.MC 9427/2022

PETITIONER ANNEXURES Annexure1 TRUE COPY OF ORDER IN CRL MP 396/2022 IN SC 816/2018 ON THE FILES OF ASSISTANT SESSIONS COURT CHERTHALA DATED 15/12/2022