MARATHUPALLY BEERAN Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED in C.C.169/92 on the file of Judicial First Class Magistrate,Malappuram,who is challenging the order of learned Magistrate in C.M.P.8220/04 wherein the prayer to recall PW 1 invoking powers under S.311 ofCr.P.C.was rejected by learned Magistrate is the petitioner.Petitioner wasoriginally convicted for the offence under S.411,471,465 and 468 of I.P.C.Petitioner challenged conviction and sentence before Sessions Court in Crl.A.155/93.Criminal Appeal was allowed setting aside conviction and sentenceand remanding the case back to Magistrate with a direction to recall PW 13,the expert and also grant liberty to petitioner to examine the mediators asdefence witnesses.Both petitioner and complainant and State challenged theorder of remand before this Court in Crl.R.P.142/95,248/95 and 426/95.This court confirmed the order of the Sessions Court and dismissed therevisions.Petitioner thereafter filed C.M.P.8220/04 before court below with aprayer to recall PWs 1 and PW 13 under S.311 of Cr.P.C.As per impugnedorder learned Magistrate dismissed petition holding that remand order islimited to the extent of recalling PW 13 and examining mediators and thereforePW 1 cannot be recalled.It is challenged in this petition filed under S.482 ofCr.P.C.

(2.) HEARD Adv.M.K.Damodaran,learned counsel appearing for revisionpetitioner and Adv.Sathyanatha Menon appearing for second respondent whois permitted to be impleaded as a necessary party in the revision.

(3.) TO appreciate the scope of order of remand it is necessary to extractrelevant portion of the order of this court in the earlier revisions.It reads asfollows: 2.The learned Magistrate after collecting the additional evidence as directedby the learned Sessions Judge shall,deal with the matter afresh,based on theevidence already on record and that collected pursuant to remanduntrammeled by any of the views contained in the judgment of the learnedSessions Judge.It is made clear that the Magistrate will be entitled to have afree and fresh look on the matter with reference to the evidence finallyavailable. Question is whether the said direction of this court to have a free and freshavailable,restricts the power of the Magistrate under S.311 of Cr.P.C.