Kerala High Court
P.K.Abdul Latheef vs Saifunneessa Naripatta on 25 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC NO. 93 OF 2019 1
2024:KER:79734
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.MC NO. 93 OF 2019
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.426 OF 2008
OF JUDICIAL MAGISTRATE OF FIRST CLASS -II (FOREST OFFENCES),
MANJERI
PETITIONER/S:
P.K.ABDUL LATHEEF,
AGED 48 YEARS
S/O. RAYINKUTTY, PEACE, EDAVANNA AMSOM,
PATHAPIRIYAM DESOM, MALAPPURAM DISTRICT.
BY ADVS.
R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
RESPONDENT/S:
1 SAIFUNNEESSA NARIPATTA,
AGED 52 YEARS
D/O. KUNHALANKUTTY MASTER, HENNAN COTTAGE, HOUSING
COLONY, MUNDUPARAMBA, MALAPPURAM DISTRICT
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM KOCHI 682 031.
OTHER PRESENT:
SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 25.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 93 OF 2019 2
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P.V.KUNHIKRISHNAN, J
--------------------------------------
Crl.M.C. No.93 of 2019
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Dated this the 25th day of October, 2024
ORDER
This Criminal Miscellaneous case is filed challenging
the order dated 19.12.2018 in CMP No. 1673/2018 in CC No.
426/2008 on the file of the Judicial First Class Magistrate
Court-II (Forest Offences), Manjeri. The petitioner is
aggrieved because, the learned Magistrate allowed an
application to recall PW1 for the purpose of cross
examination by the accused. According to the petitioner, the
1st respondent was given sufficient opportunity to cross-
examine the witness and the case was posted four times. It is
also submitted that the document was marked through the
petitioner without objection of the accused and thereafter, a
petition is filed to recall the petitioner. Hence, it is submitted
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that Annexure-VII order is unsustainable.
2. This Court perused Annexure-VII order.
Ofcourse, it is an order without applying mind. Therefore,
this Court directed the trial court to get a report about the
same as per order dated 07.01.2019. It will be better to
extract the relevant portion of the above order.
3. "Though, C.M.P.No. 1673 of 2018 was filed by
the accused seeking for recalling PW1 and cross
examining him, it appears that the court below was
misconceived about the prayer sought in the petition,
going by paragraphs 2 and 4 of the Annexure VII order
extracted hereinabove. The court below, therefore, is
directed to clarify on the relief sought and the relief
granted vide Annexure VII order. The Registry shall obtain
a report in the light of the portions of the order extracted
above by 11.01.2019, till such date the implementation of
the order shall stand deferred."
3. Thereafter, the learned Magistrate
submitted a report on 10.01.2019, which is also extracted
hereunder :
"The petitioner in Crl.MC No. 93/2019 before the
Honourable High Court of Kerala is the defacto
complainant in CC 426/2008 pending before this court. On
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09-10-2018, the petitioner/defacto complainant filed
Crl.M.P 1405/2018 to reopen the evidence of the
complainant in CC 426/2008. On 06-12-2018, the defacto
complainant filed CrlM.P 1635/2018 to recall
PW1/Complainant for the purpose of marking the
proposed document. The Crl. M.P 1405/2018 allowed on
06-12-2018 and the Crl.M.P 1635/2018 allowed on 11-12-
2018. The document tendered from the side of the
complainant received and marked as Ext P48 through
PW1. The counsel for the accused reported that he has no
further cross examination. The counsel for the accused
has not cross examined PW1. Hence I recorded the cross
examination as "NIL' and posted for the examination of
the accused U/s 313 Cr. P.C. There after on 14-12-2018
the accused in CC 426/2008 filed Crl. M.P 1673/2018 to
recall PW1 for cross examination. The same was posted
for counter to 17/12/2018. Complainant filed counter on
17-12-2018 and the petition was posted to 19-12-2018 .
On 19/12/2018 upon hearing both sides the petition was
allowed on that date vide separate order. In paragraph 2
of the said order, I recorded "the learned counsel for the
petitioner submitted that, re-open the evidence and
marking of the document is highly necessary to prove the
petitioners case". And in paragraph 4 of the said order. I
recorded the proposed documentary evidence is essential
for the just decision of the case and to ensure the fair
trial. The petition allowed on payment of cost ₹500/- to the
respondent. While drafting the order, in advertently
inserted the prayer in Crl.M.P 1405/2018 which was filed
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by the complainant for receiving a document in evidence.
Intention was to recall PW1 and it was infact an
inadvertent error crept while drafting the order.
I am appointed as Judicial First Class Magistrate No II
(Forest Offences), Manjeri and took charge on 22/09/2018.
I am a fresh entrant in the Judicial Service. The above
mistake crept due to my inexperience. I assure that I shall
pay more attention in such matters and I will not repeat
similar mistakes in future. I beg to submit that, I have
realised the mistake committed by me and I will bestow
more attention in future. I humbly pray that, my mistake
may kindly be pardoned."
4. In the light of the above explanation, it is
clear that the order is passed to recall the witness. This
Criminal Miscellaneous case is pending before this Court
from 2019 onwards and the trial court proceedings are
stayed. The service to the 1st respondent is even now not
complete. The only prayer of the 1 st respondent is to allow
him to cross-examine the petitioner. Now, another four years
elapsed because of the stay passed by this Court.
5. Considering the facts and circumstances of
this case, I am of the considered opinion that one more
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st
opportunity can be given to the 1 respondent to cross-
examine the petitioner in relation to the additional document
marked. This is a calendar case registered in the year 2008.
The Judicial First Class Magistrate Court-II (Forest
Offences), Manjeri shall dispose the main case itself on or
before 31.12.2024. I do not want to interfere with Annexure-
VII order. The learned Magistrate will give one more
opportunity to cross-examine the petitioner by the 1 st
respondent. If the 1st respondent is not ready to cross-
examine the petitioner on that day, the learned Magistrate
can proceed with the case. Registry shall forward a copy of
this order to the jurisdictional court forthwith.
With the above observation, this Criminal
Miscellaneous case is disposed of.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
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PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE ORDER PASSED BY THIS
HON'BLE COURT IN CRL.M.C NO. 6458/2014
DATED 01-03-2018.
ANNEXURE II TRUE COPY OF THE ORDER PASSED BY THE BAR
COUNCIL OF INDIA IN D.C APPEAL NO.
54/2005 DATED 31-01-2015
ANNEXURE III TRUE COPY OF THE PETITION IN C.M.P NO.
1405/2018 DATED 09-10-2018.
ANNEXURE IV TRUE COPY OF THE OBJECTION FILED BY THE
1ST RESPONDENT DATED 27-10-2018.
ANNEXURE V TRUE COPY OF THE PETITION IN C.M.P NO.
1673/2018 DATED 14-12-2018.
ANNEXURE VI TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER DATED 17-12-2018.
ANNEXURE VII CERTIFIED COPY OF THE ORDER IN C.M.P NO.
1673/2018 IN C.C NO. 426/2008 PASSED BY
THE COURT OF THE JUDICIAL FIRST CLASS
MAGISTRATE -II (FOREST OFFENCES) MANJERI
DATED 19-12-2018.
