Kerala High Court
C.Vijaya Mohanan Nair, S/O.Late ... vs State Of Kerala on 6 September, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
Crl.M.C No..6794/24 1
2024:KER:67689
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
CRL.MC NO. 6794 OF 2024
CRIME NO.458/2004 OF Kottarakkara Police Station, Kollam
AGAINST CC NO.2366 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -I, KOTTARAKKARA
PETITIONER/SOLE ACCUSED:
C.VIJAYA MOHANAN NAIR,
S/O.LATE CHELLAPPAN PILLAI
AGED 65 YEARS
VEESUPALATHUNDIL VEEDU,
PADINJATTINKARA MURI,KOTTARAKKARA P.O.,
KOTTARAKKARA VILLAGE,
KOLLAM, PIN - 691506
BY ADVS.
SRI.B.MOHANLAL
SMT.P.S.PREETHA
SRI.ASWIN V. NAIR
SRI.KARTHIK J SEKHAR
SRI.ABIJITH M.
SMT.JAYAPRABHA ARJUN
SMT.PRAVEENA T.
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER
KOTTARAKKARA POLICE STATION,
KOTTARAKKARA P.O., KOLLAM, PIN - 691506
3 THE DEPUTY SUPERINTENDENT OF POLICE
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PUNALUR, PUNALUR P.O.,
KOLLAM, PIN - 691305
4 THE DISTRICT POLICE CHIEF
KOLLAM RURAL, POLICE HEAD QUARTERS,
KOTTARAKKARA P.O., KOLLAM, PIN - 691506
5 THE STATE POLICE CHIEF
POLICE HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695001
6 REGHUNATHAN NAIR,
S/O.NEELAKANDAN NAIR
NEELAKANTA NIVAS,
THAZHATHUKULAKADA MURI,
KULAKKADA VILLAGE, KULAKKADA P.O.,
KOTTARAKKARA, KOLLAM, PIN - 691521
SRI. NOUSHAD K.A., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
29.08.2024, THE COURT ON 06.09.2024 PASSED THE FOLLOWING:
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BECHU KURIAN THOMAS, J.
--------------------------------
Crl.M.C No.6794 of 2024
---------------------------------
Dated this the 6th day of September, 2024
ORDER
Petitioner is the accused in C.C. No.2366/2008, which is
pending on the files of the Judicial First Class Magistrate's Court-
II, Kottarakkara. The said case arises out of Crime No.458/2004
of Kottarakkara Police Station. Petitioner faces a prosecution for
the offences under Sections 451 and 323 of the Indian Penal
Code, 1860.
2. The prosecution alleges that, on 02.05.2004, the accused
had trespassed into the house of the defacto complainant and
assaulted him and thereby committed the offences alleged. It
needs to be mentioned at this juncture that, initially the case was
registered as C.C. No.1301/2004 and was subsequently re-
numbered as C.C. No.2366/2008.
3. After the defence evidence was closed, petitioner filed
CMP No.116/2024 on the files of the Judicial First Class
Magistrate's Court-II, Kottarakkara seeking to re-open the
defence evidence and to recall and re-examine DW1 under
Section 311 of Cr.P.C. By order dated 16.01.2024, a copy of which
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is produced as Annexure A5, the said application was dismissed.
Later petitioner filed CMP No.2054/2024 seeking to summon
another witness and to mark four documents. Petitioner also filed
CMP No.2055/2024, again to re-open the defence evidence to
examine other witnesses and to mark four documents. The said
two petitions were dismissed by Annexure A6 and Annexure A7
orders dated 18.06.2024. Petitioner assails the three orders
refusing to reopen defence evidence and and to mark the
documents.
4. I have heard Sri. B.Mohan Lal, the learned counsel for the
petitioner, and Sri. Noushad K. A., the learned Public Prosecutor.
5. The three orders that are assailed by the petitioner in this
criminal miscellaneous case are orders declining to permit the
reopening of the defence evidence and to mark additional
documents. The learned Magistrate has observed that the
documents that are sought to be marked and the witnesses
sought to be examined by the petitioner are not necessary for a
just decision of the case. After specifically referring to the
documents sought to be produced, the learned Magistrate has
concluded that the documents that are sought to be marked in the
applications had earlier itself, (through Annexure A5 order), been
rejected by the court as not required for a just decision. Despite
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such dismissal, petitioner again filed an application seeking the
same relief, which was declined by Annexure A7 order. Thereafter
petitioner has preferred this criminal miscellaneous case
challenging even the order dated 16.01.2024 as well as the
subsequent orders.
6. The power under Section 311 Cr.P.C is no doubt very wide
and it can be exercised at any stage of a trial. However, such a
power should be exercised only if the evidence sought to be
adduced is germane to the issue involved or it is relevant and
could not be brought on record due to reasons beyond the control
of the party. The provision itself indicates that the power under
Section 311 can be exercised for a just decision of the case.
Reference in this context to the decisions in Vijayakumar v.
State of Uttar Pradesh and Another [(2011) 8 SCC 136] and
State (NCT of Delhi) v. Shiv Kumar Yadav and Another
[(2016) 2 SCC 402] would be apposite.
7. In the instant case, on a perusal of Annexure A5 order, it
is seen that the documents that are sought to be produced and
marked by the petitioner are those that were obtained under the
Right to Information Act more than ten years ago. Therefore, if
the petitioner wanted those documents marked, he had ample
opportunity during the stage of defence evidence. The case is of
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the year 2004 and more than 20 years have elapsed since the
alleged incident occurred. It is evident that the attempt of the
petitioner is to protract the proceedings.
8. In such circumstances, I do not find any reason to
interfere with the impugned orders of the learned Magistrate and
do endorse the view that the attempt of the petitioner is to
protract the proceedings.
Accordingly, this Crl.M.C is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
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PETITIONER'S/S' ANNEXURES
Annexure A1 THE TRUE COPY OF THE FINAL REPORT IN
C.C.NO:1301/2012 OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-II, KOTTARAKKARA
Annexure A2 THE TRUE COPY OF THE ACCIDENT REGISTER CUM
WOUND CERTIFICATE DATED 02/05/2004 ISSUED BY
THE MEDICAL OFFICER, TALUK HEAD QUARTERS
HOSPITAL, KOTTARAKKARA TO THE PETITIONER
Annexure A3 THE TRUE COPY OF THE FINAL REPORT
C.C.NO:1400/2004 OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-II, KOTTARAKKARA
Annexure A4 THE TRUE COPY OF THE JUDGMENT DATED
31/10/2016 IN CRL.M.C.NO:546/2013 OF THIS
HON'BLE COURT
Annexure A5 THE TRUE COPY OF THE ORDER DATED 16/01/2024
IN C.M.P.NO:116/2024 IN C.C.NO:2366/2008 OF
THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
KOTTARAKKARA
Annexure A6 THE TRUE COPY OF THE ORDER DATED 18/06/2024
IN C.M.P.NO:2054/2024 IN C.C.NO:2366/2008 OF
THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
KOTTARAKKARA
Annexure A7 THE TRUE COPY OF THE ORDER DATED 18/06/2024
IN C.M.P.NO:2055/2024 IN C.C.NO:2366/2008 OF
THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
KOTTARAKKARA
