IMPORTANT POINT
The court upheld the Magistrate's discretion to deny reopening prosecution evidence, emphasizing that such requests must demonstrate essentiality for a just decision.

ORDER :

BECHU KURIAN THOMAS, J.

A criminal prosecution has been pending from 2003 onwards as C.C. No.1441/2003 before the Judicial First Class Magistrates Court, Kunnamkulam. After the prosecution evidence was completed, the prosecutor filed two applications under section 311 Cr.P.C to reopen the prosecution evidence and to examine additional witnesses as per Section 294 of Cr.P.C and section 242(ii) of Cr.P.C. Those applications filed as CMP No.2016/2020 and CMP No.2015/2020 were both dismissed by the learned Magistrate by the impugned order dated 29.04.2020. The revision petitions filed by prosecution before the Sessions Court as Crl.R.P. No.23/2020 and Crl.R.P. No.24/2020 were dismissed as not maintainable. Though the prosecution did not pursue the matter thereafter, the brother of the alleged victim has preferred this petition under Section 482 Cr.P.C, challenging the orders of the learned Magistrate as well as that of the Sessions Court.

2. C.C. No.1441/2003 on the files of Judicial First Class Magistrate’s Court, Kunnamkulam is based on a police charge alleging that the accused, who was working as the Sub-Inspector of Police of the Kunnamkulam Police Station, had, on 01.09.2001, assaulted the deceased Sri. Narayanan Nair with a lathi and thereby committed the offence under Section 324 of the Indian Penal Code, 1860. After the evidence of the prosecution was completed, the Prosecutor filed CMP No.2015 of 2020 and CMP No.2016 of 2020 seeking to re-open the prosecution evidence to mark four documents under Section 294 of Cr.P.C without formal proof of those documents and to summon three witnesses. The learned Magistrate by the impugned order dated 29.4.2020 dismissed both applications after observing that the attempt of the prosecution is to indirectly do what cannot be done directly. Challenging the aforesaid orders, the Prosecutor preferred revision petitions before the Sessions Court, which was dismissed as not maintainable by order dated 30.01.2021, which is also assailed in this petition. Since the prosecution did not pursue the applications thereafter, this petition under section 482 Cr.P.C has been preferred by the brother of the victim.

3. A brief reference to the background of the case is essential. The brother of the petitioner herein late Sri. Narayanan Nair was allegedly standing at a bus stop on 01.09.2001 and the accused who was the then Sub Inspector of Police is alleged to have brutally assaulted him with a lathi pursuant to which the victim was taken to the hospital and he is alleged to have succumbed to his injuries. A crime was initially registered under Section 174 as Crime No. 184/2001 before the West Fort Police Station and later due to territorial jurisdiction transferred and reregistered as FIR No.653/2001 before the Kunnamkulam Police Station. Subsequently, after investigation, a final report was filed and cognizance was taken as C.C. No.1441/2003 under Section 324 IPC.

4. In the meantime, a private complaint was filed by one of the brothers of the victim alleging that the deceased was murdered by the police. The learned Magistrate refused to take cognizance of the case against which a revision was preferred which was allowed and remitted the matter to the Magistrate. Subsequently, cognizance was taken for the offence under Sections 325, 326 and 201 read with Section 34 of the Indian Penal Code, 1860 and the case was numbered as C.C. No.197/2011. The accused challenged the order taking cognizance of the offence before this Court and by order dated 18.08.2017 in Crl.M.C No.407 of 2016, a learned Single Judge of this Court quashed the proceedings after finding that the alleged act was done in discharge of the official duty of the accused and therefore sanction was necessary.

The Special Leave Petition filed against the said order was also dismissed.

5. It is also necessary to mention at this juncture that in the meantime, the petitioner had approached the Government seeking sanction for prosecuting the accus