Kerala High Court
Sunilkumar vs State Of Kerala on 9 September, 2025
2025:KER:66812
O.P.(Crl.)No.816/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 9TH DAY OF SEPTEMBER 2025 / 18TH BHADRA, 1947
OP(CRL.) NO. 816 OF 2024
CRIME NO.822/2010 OF SOORANADU POLICE STATION, KOLLAM
AGAINST THE ORDER DATED 16.10.2024 IN CC NO.1293 OF 2016
OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, SASTHAMCOTTA
PETITIONER/PETITIONER/DE FACTO COMPLAINANT:
SUNILKUMAR,
AGED 54 YEARS,
S/O KRISHNA KURUP,
RESIDING AT MUDUYIL THAZHATHIL VEETTIL,
AYIKKUNNAM MURI,
SOORANADU SOUTH VILLAGE,
KOLLAM., PIN - 690522
BY ADVS.SHRI.S.JAYANT
SHRI.VARGHESE SABU
SHRI.ANOOP P. PILLAI
RESPONDENT/ RESPONDENT/ STATE/ ACCUSED:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERANAKULAM,
PIN - 682031
2 SUB INSPECTOR OF POLICE
SOORANADU POLICE STATION,
CHAKKUVALLY, SOORANAD, KOLLAM.,
PIN - 690520
3 SURESH KUMAR
S/O GOPALA PILLAI ,
RESIDING AT MUDUYIL PADINJATTATIL VEETTIL,
AYIKKUNNAM MURI,
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O.P.(Crl.)No.816/2024
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SOORANADU SOUTH VILLAGE,
KOLLAM., PIN - 690521
4 AJAYA KUMAR
S/O GOPALA PILLAI,
RESIDING AT MUDUYIL PADINJATTATIL VEETTIL,
AYIKKUNNAM MURI,
SOORANADU SOUTH VILLAGE,
KOLLAM., PIN - 690521
5 SHANTAMMA
D/O GOWRIKUTTY,
RESIDING AT MUDUYIL PADINJATTATIL VEETTIL,
AYIKKUNNAM MURI,
SOORANADU SOUTH VILLAGE,
KOLLAM., PIN - 690521
6 SREEJA
D/O THANKAMANY,
RESIDING AT MUDUYIL PADINJATTATIL VEETTIL,
AYIKKUNNAM MURI,
SOORANADU SOUTH VILLAGE,
KOLLAM., PIN - 690521
7 SREEJA
D/O SARASSAM,
RESIDING AT MUDUYIL PADINJATTATIL VEETTIL,
AYIKKUNNAM MURI,
SOORANADU SOUTH VILLAGE,
KOLLAM., PIN - 690521
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
09.09.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O.P.(Crl.)No.816/2024
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JUDGMENT
Ext P12 order of the Judicial First Class Magistrate Court-II,
Sasthamcotta, rejecting the request of the de facto complainant in Crime
No.822/2010 of Sooranadu Police Station, Kollam, to examine one of the
Dy.S.Ps, who had investigated the case, is under challenge in this
petition filed by the de facto complainant under Article 227 of the
Constitution of India.
2. The case relates to the commission of offences under
Sections 452, 294(b), 323, 324, 325 & 427 read with Section 34 of the
Indian Penal Code, 1860. It is seen that the further investigation in the
case was conducted by two Dy.S.Ps, pursuant to the orders passed by
this Court. However, in the final report filed, the name of one of the
Dy.SPs, who conducted the investigation, was not included. The other
Dy.S.P was examined as PW9. He stated during the cross-examination
that it was his predecessor-in-office who had recorded the statement of
CW5. According to the de facto complainant and the prosecution, the
examination of Dy.S.P. Mr Shanavas, who conducted a part of the
investigation, is highly necessary to meet the ends of justice.
3. The request in the above regard was rejected by the learned
Magistrate for two reasons. Firstly, it is stated that the evidence in the
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case was closed on 18.07.2024, and that there was no specific prayer for
re-opening the evidence. Secondly, the learned Magistrate found that the
Deputy Superintendent of Police, Mr Shanavas, who had conducted part
of the investigation, has not been included in the list of witnesses
forming part of the final report.
4. Heard the learned counsel for the petitioner and the learned
Public Prosecutor representing the State of Kerala.
5. It is obvious from the facts and circumstances of the case
that the Deputy Superintendent of Police Mr Shanavas had conducted a
portion of the investigation in this case, pursuant to the directions of this
Court. However, the name of the above person has not been
incorporated in the list of witnesses forming part of the final report and
the further report. The omission in the above regard cannot be taken as
a reason to disallow the prayer for examining the above person as a
witness, since it is found that such examination is necessary for a just
decision in the case. So also, the learned Magistrate has wrongfully
resorted to technicality in disallowing the prayer for examination of the
aforesaid Dy.S.P., by stating in paragraph No.5 of the impugned order
that there is no petition to re-open the evidence. It appears from the
facts and circumstances of this case that the examination of Deputy
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Superintendent of Police, Mr Shanavas, who had conducted a part of the
investigation, is necessary for the just decision of the case. Therefore,
the impugned order passed by the learned Magistrate, is liable to be set
aside.
In the result, the petition stands allowed as follows:
(i) Ext P12 order passed by the Judicial First Class Magistrate
Court-II, Sasthamcotta, disallowing the prayer for examination of
the Deputy Superintendent of Police Mr Shanavas, as an
additional witness, is hereby set aside.
(ii)The learned Magistrate is directed to pass appropriate orders to
summon and examine the aforesaid person as an additional
witness from the part of the prosecution.
Sd/-
G. GIRISH, JUDGE
DST/09.09.25
2025:KER:66812
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF FIR NO 822 OF 2020 OF
SOORANADU POLICE STATION, KOLLAM
EXHIBIT P2 A TRUE COPY OF FINAL REPORT PENDING ON THE
FILES OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, SASTHAMCOTTA AS CC NO 68/2011
EXHIBIT P3 A TRUE COPY OF JUDGMENT OF THIS HON'BLE
COURT IN CRL MC NO 7143 OF 2017 DATED 07TH
DAY OF NOVEMBER 2017
EXHIBIT P4 THE A TRUE COPY OF DEPOSITION OF CW7 IN CC
NO 1293/2016 ON THE FILE OF JUDICIAL FIRST
CLASS MAGISTRATE COURT TEMPORARY,
SASTHAMKOTTA
EXHIBIT P5 A TRUE COPY OF THE SPECIMEN SIGNATURE OF
WITNESSES WHO ATTESTED THE SCENE MAHAZAR
EXHIBIT P6 A TRUE COPY OF JUDGMENT OF HON'BLE HIGH
COURT OF KERALA IN WP(C ) NO 2039 OF 2011
DATED 01-02-2011
EXHIBIT P7 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN CRL MC NO 950 OF 2024 DATED
16-02-2024
EXHIBIT P8 A TRUE COPY OF DEPOSITION OF CW 7 IN CC NO
1293/2016 ON THE FILE OF JUDICIAL FIRST
CLASS MAGISTRATE COURT TEMPORARY,
SASTHAMKOTTA WHEN HE WAS RECALLED UNDER
SECTION 311 OF CRPC
EXHIBIT P9 A TRUE COPY OF DEPOSITION OF PW10
EXHIBIT P10 A TRUE COPY OF DEPOSITION OF CW12
EXHIBIT P11 A TRUE COPY OF CMP NO 1756/2024 CC NO
1293/2016 ON THE FILE OF JUDICIAL FIRST
CLASS MAGISTRATE COURT II, SASTHAMKOTTA
DATED 09-08-2024
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EXHIBIT P12 A TRUE COPY OF ORDER IN CMP NO 1756/2024 CC
NO 1293/2016 ON THE FILE OF JUDICIAL FIRST
CLASS MAGISTRATE COURT II, SASTHAMKOTTA
DATED 16-10-2024
