SAJEEVAN M Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is second accused in C.C.No.378 of 2002 of the Court of Judicial First Class Magistrate,, Kuthuparamba arising from the final report in Crime No.163/2002 of Kuthuparamba Police Station for offences punishable under Sections 143, 147, 148, 447, 427 and 506(ii) read with Section 149 of Indian Penal Code. Prosecution case is that on 5.4.2002 at about 2 AM, petitioner and other accused trespassed into the property of defacto complainant, committed mischief and threatened to kill him. Evidence of prosecution was closed on 22.10.2009 and thereafter, defence evidence was also closed and the matter was heard. While so, the defacto complainant produced certain documents before the learned Magistrate. That was followed by the learned Assistant Public Prosecutor filing C.M.P.No.435 of 2011 to recall the defacto complainant/PW1 for further examination (obviously to prove the documents, which was produced before learned Magistrate). By order dated April 2, 2011, the learned Magistrate reopened the case and recalled PW1. That order is under challenge.

(2.) LEARNED counsel submitted that attempt of the prosecution is to fill up lacuna in the prosecution case which cannot be permitted. Reliance is placed on the decision in Mohanlal Shamji Soni v. Union of India (AIR 1991 SC 1346). It is also contended by the learned counsel that it is not stated in C.M.P.No.435 of 2011 for what purpose defacto complainant/PW1 is being recalled.

(3.) IT is contended that in C.M.P.No.435 of 2011 there is no mention as to the purpose for which the defacto complainant/PW1 is being recalled. I must bear in mind that before that petition is filed, additional documents were produced before the learned Magistrate. IT was clear that the purpose of recalling the defacto complainant was to prove the said documents.