Kerala High Court
Shan Das vs State Of Kerala on 6 June, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
OP(CRL.) NO. 420 OF 2024
CRIME NO.816/2016 OF Palarivattom Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.2108 OF 2016 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM
PETITIONER:
SHAN DAS
AGED 38 YEARS
S/O. MOHAN DAS,
PODIMANNIL HOUSE,
KOODAL P.O., ADOOR,
PATHANAMTHITTA,
PIN - 689693
BY ADVS.
T.KABIL CHANDRAN
R.ANJALI
RESPONDENT:
STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
PALARIVATTOM POLICE STATION
THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
PIN - 682031
OTHER PRESENT:
SREEJA V. (PP)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL.) NO. 420 OF 2024
2
BECHU KURIAN THOMAS, J
..........................................................
O.P.(Crl) No. 420 of 2024
..........................................................
Dated this the 6th day of June, 2024
JUDGMENT
Petitioner is the 2nd accused in C.C.No. 2108/2016 on
the files of the Judicial First Class Magistrate Court-IX,
Ernakulam. He faces prosecution along with other accused for
the offences under Sections 341, 353 r/w Section 34 of the
Indian Penal Code, 1860 apart from the offence under Section
3(ii) of the Prevention of Damage to Public Property Act, 1984.
2. When the case was posted for evidence on
15-11-2021, the counsel for the accused sought for an
adjournment and on their request, the case was posted to
24-11-2021 on which date also the accused failed to appear in
Court and again sought for an adjournment. The reason for
the adjournment being not convincing, the learned Magistrate
dismissed the said application and proceeded with the trial.
3. In the meantime, an application was filed in 2024
under Section 311 Cr.P.C to cross-examine PW-1 and PW-2.
OP(CRL.) NO. 420 OF 2024
The said application was dismissed by the impugned order
dated 03-05-2024, as being belated and an attempt to review
the earlier order rejecting the request for adjournment of the
case for cross-examination. Petitioner challenges the aforesaid
order rejecting his application under Section 311 Cr.P.C.,
4. I have heard Sri. T.Kabil Chandaran, the learned
counsel for the petitioner as well as Smt.Sreeja the learned
Public Prosecutor.
5. Petitioner is facing prosecution for the offences under
Section 353, 341 r/w Section 34 of the IPC along with the
other accused. Concededly, the evidence for the prosecution
has not yet been completed and petitioner has participated in
the trial and even cross-examined the remaining witnesses
examined on behalf of the prosecution. Admittedly, two of the
prosecution witnesses PW1 and PW2 were not cross-examined
on behalf of the petitioner. The case had been dragging from
2021 till date, despite the petitioner's failure to cross-examine
the prosecution witnesses. Since interests of justice require
that the accused be given an opportunity to cross examine the
witnesses, I am of the view that, though the learned
OP(CRL.) NO. 420 OF 2024
Magistrate was justified in observing that the application was
belated one last opportunity must be granted to the petitioner
to cross-examine the witnesses and the impugned order be set
aside.
6. Accordingly, Ext.P5 order dated 03-05-2024 in
C.M.P.No.2267.2024 in C.C.No.2108/2016 on the files of the
Judicial First Class Magistrate Court-IX, Ernakulam is set
aside. The learned Magistrate shall recall PW-1 and PW2 and
permit the petitioner to cross-examine them. Petitioner shall
not seek, under any circumstances whatsoever, any further
adjournment for cross-examination. If in case the petitioner
fails to cross-examine the witnesses on the day prescribed by
the Court, the learned Magistrate will be at liberty to proceed
in accordance with law.
This original petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AJM
OP(CRL.) NO. 420 OF 2024
APPENDIX OF OP(CRL.) 420/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE FIR AND FINAL REPORT
IN CC NO. 2108/2016 PENDING ON THE FILES
OF JUDICIAL FIRST-CLASS MAGISTRATE
COURT-IX, ERNAKULAM
Exhibit P2 A TRUE COPY OF THE PROCEEDINGS DATED
24.11.2021 IN CMP NO.2465/2021 IN CC NO.
2108/2016 PENDING ON THE FILES OF
JUDICIAL FIRST-CLASS MAGISTRATE COURT-
IX, ERNAKULAM
Exhibit P3 A TRUE COPY OF THE DEPOSITION OF PW1
Exhibit P4 A TRUE COPY OF THE PETITION IN CMP
2267/2024 IN CC NO. 2108/2016 PENDING ON
THE FILES OF JUDICIAL FIRST-CLASS
MAGISTRATE COURT-IX, ERNAKULAM
Exhibit P5 THE CERTIFIED COPY OF THE PROCEEDINGS
DATED 03.05.2024 IN CMP 2267/2024 IN CC
NO. 2108/2016 PENDING ON THE FILES OF
JUDICIAL FIRST-CLASS MAGISTRATE COURT-
IX, ERNAKULAM
