Point of Law : very object of enactment of Section 161 of the Cr.P.C. and Section 145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and also for impeaching the merit of the witnesses.

ORDER :

These are petitions filed under Section 482 of the Code of Criminal Procedure seeking to quash Annexure A2 and A4 orders of the Additional Sessions Judge, Neyyattinkara in CMP.87/2021 and CMP.86/2021 in SC.368/2014 respectively.

2. Petitioner in both these Crl.M.Cs is one and the same. He is the first accused in SC. 368/2014 of Additional Sessions Court, Neyyattinkara, which is the culmination of investigation in crime No.490/2012 of Kanjiramkulam police station, Thiruvananthapuram. That is a case registered alleging offence under Sections 143, 147, 341, 324, 307, 302 r/w 149 of IPC. The alleged incident had happened at 9:45 p.m. on 27.10.2012. There are ten accused in the crime. It is alleged that they formed an unlawful assembly and, in prosecution of their common object, committed murder of one Christudas and one Antony and caused injuries to three others; all the accused are members of the same family. After investigation, charge sheet was laid and the accused are facing trial. According to the petitioner, the prosecution evidence was partly completed in February 2020 and thereafter, even during pandemic, the defence had participated in completing the trial; prosecution evidence was completed on 22.12.2020. Then the learned Additional Sessions Judge adjourned the case 15 times for recording statements of the accused under Section 313 of the Cr.P.C. Ultimately, on 23.07.2021 statements of the accused were recorded under Section 313 of the Cr.P.C. and the case was posted to 26.07.2021 for enquiry under Section 232 of the Cr.P.C. Then the petitioner filed the said CMP Nos.86/2021 and 87/2021. CMP. 86/2021 was filed under Sections 233(3) and 91 of the Cr.P.C. for issuing summons to Dy.S.P. of Crime Branch CID, HHW-1, Jawahar Nagar, Kawdiar for the purpose of causing to produce a report in file No.169/CB/HHW-1/SU/15 and statement of all witnesses recorded in file No.D1/5484/CR/2015 dated 26.03.2015. Similarly, CMP.87/2021 was filed for issuing summons to witnesses mentioned in the witness list for producing documents and adducing oral evidence. There are three witnesses in the list; they are Sri. S. Rafeek, Deputy Superintendent of Police, Crime Branch CID, HHW-1, Thiruvananthapuram and the purpose is to prove further investigation report submitted by him and the report dated 18.05.2015. Others are two medical officers. There is no dispute with regard to the summoning of defence witness Nos.2 and 3.

3. By Annexure-A2 order dated 30.07.2021, the learned Additional Sessions Judge allowed CMP.86/2021 in part. He permitted to summon witness Nos.2 and 3, that is the medical officers. However, petition to summon the said Rafeek, the Dy.S.P. was disallowed on the premise that no further investigation was conducted by him and that no such report is available before court; statements of such witnesses as part of further investigation also were not available. CMP. 87/2021 was also dismissed in view of the dismissal of CMP. 86/2021 as regards the summoning of the Dy.S.P. Challenging these orders the petitioner has approached this Court under Section 482 of the Cr.P.C.

4. I heard Sri.Renjith B. Marar, the learned counsel for the petitioner and Sri.Hrithwik C.S. as well as Sri. Renjith T.R., the learned Senior Public Prosecutors appearing for the respondent State.

5. According to the learned counsel for the petitioner, the embargo under Section 172(3) of the Cr.P.C. is not applicable in the facts of the case. He has not called for the Case Diary. He had filed application under Sections 233(3) and 91 of the Cr.P.C. for summoning the Dy.S.P. who conducted further investigation and also for producing statements recorded by him for the purpose of contradicting and impeaching some of the prosecution witnesses. According to him, the report given by the said Rafeek, Dy.S.P. and previous statements of some of the prosecution witnesses have already been obtained by him under the Right to Information Act and that the said Dy.S.P. is now working el