The court reaffirmed the principle that Section 311 Cr.P.C cannot be used to amend previously closed prosecution evidence unless substantial justification exists.

ORDER

Dated this the 18th day of January, 2021

Petitioners are CW2 and CW3 in C.C.No.428 of 2012 pending before the Judicial Magistrate of First Class, Kattappana. The petitioners are aggrieved by their non-examination in the case in spite of being summoned to give evidence. The further grievance is that the summons was issued on 27.11.2020 requiring the petitioner's appearance on 30.11.2020, despite the petitioners being employed at Qatar and that the notice was served by affixture at the petitioners' paternal house as provided under Section 65 of Cr.P.C. According to the petitioners, on coming to know about the summons they applied for leave from their employer abroad, underwent the necessary Covid-19 test and came down to India on 04.12.2020 and was in quarantine. In the meanwhile, the case was taken up on 30.11.2020 and noting the absence of the summoned witnesses (the petitioners), the learned Magistrate closed the prosecution evidence. The absence of the petitioners on 30.11.2020 not being wilful, an opportunity is sought to give evidence. According to the petitioners, they are crucial witnesses since their mother is the de facto complainant. The prayer in this Crl.M.C is for a direction to the jurisdictional Magistrate to examine the petitioners as witnesses by invoking power under Section 311 of Cr.P.C.

2. Sri.J.R.Prem Navaz, learned Counsel for the petitioners highlighted the gross illegality in the court having closed the prosecution evidence without providing an opportunity for the petitioners to give evidence, in spite of the petitioners having travelled down to India during the pandemic period. It is contended that the court as well as the prosecution committed an illegality in granting only three days time to the petitioners to appear before court. According to the learned Counsel, the prosecutor is well aware of the fact that the petitioners are employed abroad, but failed to bring it to the notice of the court. It is submitted that the allegation being that the accused had cheated the petitioners' mother of a huge amount, the petitioners are the most competent persons to give evidence regarding the deception. It is contended that necessary power is conferred on the court under Section 311 Cr.P.C to examine the petitioners.

3. Smt. Geetha Job, learned Counsel appearing for the additional third respondent vehemently opposed the prayer and submitted that the instant case is a classic example of victimisation of an accused by protracting the prosecution endlessly. According to the learned Counsel, the very fact that the instant Crl.MC is filed without impleading the accused itself speak volumes about the mala fide intention of the petitioners. Drawing attention to Annexure R3(D) order sheet pertaining to the case, it is submitted that the case was posted for more than 67 times for adducing prosecution evidence. It is pointed out that out of 20 witnesses cited by the prosecution, only 5 had turned up and after their examination, the prosecution evidence was closed on 19.04.2018 and the case posted for Section 313 examination of the accused. In the meantime, an application was submitted by the de facto complainant seeking further investigation and the prayer was rejected. Thereupon, she approached this Court in Crl.M.C and later withdrew the case. Thereafter, a writ petition was filed which ended in dismissal, as evidenced by Ext.R3(I) judgment. In Ext.R3(I), this Court has observed that the attempt of the petitioner appears to be protraction of the trial, for reasons best known to her. That, the accused was examined under Section 313 and had submitted a statement under Section 315 Cr.P.C and after examination of the defence witnesses, the case is now posted for hearing. The learned Counsel submitted that the pendency of the case from 2012 onwards had taken its toll on the accused's life and further protraction for frivolous reasons would cause substantial hardship to the accused.

4. Even though I find substance in t