The duty of the defense counsel to appraise the court of the need for cross-examination and the court's discretion to allow or deny the same. Caution against offensive language in judicial orders.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 21^ST DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 CRL.MC NO. 1715 OF 2024 CRIME NO.296/2012 OF Varkala Police Station, Thiruvananthapuram AGAINST THE ORDER/JUDGMENT CC 835/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA PETITIONER/ACCUSED:

1 SHAMSUDHEEN AGED 69 YEARS S/O MOHAMMED ABDHUL KHADHAR, KONATH VEEDU, NADAYARA, KANNAMBA DESOM, VARKALA, THIRUVANANTHAPURAM DISTRICT, PIN - 695141

2 RAFEEQ AGED 28 YEARS S/O SHAMSUDHEEN, S.K. MANZIL, NADAYARA, KANNAMBA DESOM, VARKALA, THIRUVANANTHAPURAM DISTRICT PRESENTLY WORKING AT JABRIA BLOCK 8, STREET 10, BUILDING NO.17, KUWAIT CITY, PIN -

695141 BY ADVS.

V.B.PREMACHANDRAN VIVEK R.M.

RESPONDENT/STATE:

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 PP-SRI.PRASANTH M.P THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

SOPHY THOMAS, J =========================

Crl.M.C.No.1715/2024 ==========================

Dated this the 21^ST day of February, 2024

ORDER

This Crl.M.C. is filed at the instance of accused nos.1 and

2 in CC No.835/2012 on the file of Judicial Magistrate of First Class, Varkala, impugning Annexure II order in CMP No.6792/2023 dated 08.09.2023.

2. The grievance of the petitioners is that, as per Annexure II order, learned Magistrate reopened the evidence for cross-examination of PW5, who is the Investigating OfÏcer. According to the petitioners, the prosecution evidence was completed and Section 313 CrPC questioning of the accused also was conducted. Thereafter there is no scope for reopening evidence, for cross-examining witnesses. Only to fill up the lacuna, now the prosecution is trying to reopen the evidence to cross examine PW5.

3. In paragraph 3 of the impugned order, learned Magistrate has stated that on 17.06.2019, the Investigating OfÏcer was examined in chief as PW5, and Exts.P1(a) to P1(c)

and P2 to P6 were marked through him. His cross-examination was adjourned on request made by learned counsel for the accused. On the next posting date, PW5 was present before Court, but he was bound over for the reason that, examination of CWs4, 7 and 8 had to be completed before his cross- examination. So, PW5 was directed to appear on getting fresh summons after examination of CWs 4, 7 and 8. By that time, the presiding ofÏcer of that Court got transferred, and his successor in ofÏce was not appraised by the learned defence counsel, that PW5 was not cross examined. Only at the time of argument, learned counsel for the petitioners/accused submitted that, the evidence of PW5 could not be looked into, as he was not cross-examined. Then only the Court noticed the fact that PW5 was not cross-examined on 17.06.2019, as learned counsel for the accused got it adjourned. The defence counsel was duty bound to appraise the court that PW5 was not cross examined, and so he could have recalled him for the purpose of cross-examination. But without doing that, now he is trying to prevent the Investigating OfÏcer from being cross- examined, so as to say that his examination cannot be looked into for want of cross-examination. Petitioners have no case that any prejudice will be caused to them by reopening evidence for conducting cross-examination of PW5. If they do not want to cross-examine PW5, they can make a submission before the Trial Court to that effect, so the Trial Court can proceed with the case without recalling PW5 for cross- examination, but his testimony in chief will be acted upon. So learned Magistrate has to give an opportunity to the petitioners/accused to exercise their option of cross-examining PW5 or not to cross. If they do not want to cross-examine PW5, learned Magistrate can record the same and proceed with the case accepting the testimony already given by PW5. If they want to cross-examine PW5, it can be done as per Annexure II order.

4. Before parting with, learne