JOLLYAMMA JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed under Sec. 482 of the Code of Criminal Procedure challenging the order dtd. 8/5/2023 passed by the learned Sessions Judge, Kozhikode, rejecting the application filed by the 1st accused seeking to discharge Charge witness No.156 and not to permit the prosecution to examine him as a witness.

(2.) Short facts are as under:

(3.) Sri B.A. Aloor, the learned counsel, submitted that the order passed by the learned Sessions Judge is illegal. In the instant case, the prosecution had filed a supplementary charge arraying CW156 as the 5th accused. Though the proceeding was quashed on the petition filed by the Notary, the fact remains that this Court had made it clear that the order will not stand in the way of the Investigating officer filing a proper complaint against CW156 in tune with the mandate of Sec. 13(1) of the Notaries Act. It is submitted that further investigation against CW156 is pending, and there are reasonable prospects of him being made an accused. Furthermore, the prosecution has not filed any additional report against CW156 to cite him as an additional witness to prove their case. The prosecution has also not produced any supplementary statement after the proceedings against the said person were quashed by this Court. According to the learned counsel, the grant of permission to examine CW156 as an additional witness goes against the fundamental principles of criminal jurisprudence. As the prospect of him being arraying as an accused is still open, there was no justification in permitting the prosecution to examine the witness otherwise than by following the procedure prescribed under Ss. 306 and 307 of the CrPC. It is submitted that permitting accused No. 5 in the supplementary charge to be examined as a witness would result in serious prejudice to the accused. Much reliance is also placed on the judgment rendered by a Division Bench of this Court in Abdul Razak @ Abu Ahmed Vs Union of India and Anr [2010 ICO 3188] and certain observations in the judgment rendered by a learned Single Judge of the Bombay High Court in Mahesh Balasaheb Thakoor v. State of Maharashtra and Another (2021 ICO 1237) to advance the proposition argued by the learned counsel.