P.A SHADULY @ HARIS Vs. STATE

JUDGEMENT

(1.) An interesting question is mooted in this appeal by the 1st accused in S.C. No. 2/2011 on the files of the Special Court II for Trial of NIA Cases, Kerala, Ernakulam. The 1st accused/appellant is facing trial along with the other accused for having committed offences punishable under Sections 120B, 124A, 153A of the Indian Penal Code, Sections 25 and 27 of the Arms Act and Sections 10 and 13 of the Unlawful Activities Prevention Act (UAP) Act.

(2.) In the instant case the prosecution has cited 121 charge witnesses before the NIA Court. Out of the same, only 24 witnesses have been examined. At this stage this appellant has filed an application opposing the examination of 38 witnesses ie; CWs. 43, 48 to 50, 52, 53, 68 to 78, 87 to 98 and 113 to 121, by the prosecution, on the ground that the prosecution has not recorded their statements as provided under Sub-Section 3 of Section 161 of the Code of Criminal Procedure (for brevity, ''Cr.P.C''). The learned counsel for the appellant has contended that it is mandatory to record the statements of the witnesses and the examination of the witnesses before court without recording their statements under Section 161 (3) of Cr. P.C would cause prejudice to the appellant. Hence he filed application opposing their examination before the court .

(3.) Learned Public Prosecutor for NIA had vehemently opposed the application and contended that it is not mandatory to record statements of witnesses, under Section 161(3) of Cr. P.C. and hence the examination of those witness before the court will not cause any prejudice to the appellant .