RAVEENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners, who are the accused in SC No. 346/2004 filed Crl MP No. 119/2008 before the Additional Sessions Judge, Vadakara for an order to treat the evidence tendered by the witnesses in the trial before the Judicial First Class Magistrate Court, Vadakara in CC No. 447/2001 as previous statements for the purpose of contradiction under S.145 of the Evidence Act. The said petition was dismissed by the Additional Sessions Judge as per Annexure A2 order dated 11/02/2008.

(2.) To appreciate the factual background, it may be necessary to advert to some more facts. SC No. 346/2004 and SC No. 429/2001 pending before the Additional Sessions Court, Vadakara constituted a case and counter case. SC No. 346/2004 was originally pending before the Judicial First Class Magistrate Court, Vadakara as CC No. 447/2001. The offences in CC No. 447/2001 are not exclusively triable by a Court of Sessions. But since this was the main case of which SC No. 429/2001 pending before the Additional Sessions Court, Vadakara was a counter case, this Court was moved for a transfer of CC No. 447/2001 pending before the Judicial First Class Magistrate Court, Vadakara to the Additional Sessions Court, Vadakara to be tried in quick succession along with CC No. 429/2001. Actually the request made for transfer of the case was misconceived. The proper remedy was either to move this Court for an order of committal under S.407(1)(iii) CrPC or to seek a direction to the Magistrate to commit the case under S.323 CrPC. That does not appear to have been done. By that time, the trial in CC No. 447/2001 before the Judicial First Class Magistrate Court, Vadakara was over and what remained was only pronouncing the judgment. It was at that stage that this Court ordered a transfer of C.C case to the Additional Sessions Court, Vadakara. After the transfer of CC No. 447/2001, the case was reregistered as SC No. 346/2004 before the Additional Sessions Court, Vadakara. The Additional Sessions Court on noticing that the trial in CC No. 447/2001 was already over before the Judicial First Class Magistrate Court, Vadakara sought a clarification from this Court as to whether a de novo trial is necessary or whether the trial already conducted before the JFCM, Vadakara was sufficient in SC No. 346/2004. This Court as per Annexure A1 order dated 18/09/2007 clarified that the learned Additional Sessions Judge will have to conduct a de novo trial and that the evidence adduced before the Magistrate cannot be taken into consideration. It was thereafter that the petitioners who are the accused in SC No. 346/2004 filed the present application before the Additional Sessions Court.

(3.) The reason stated by the Additional Sessions Judge for rejecting the application was that this Court while clarifying the position as per order dated 18/09/2007 had observed that the evidence adduced before the Magistrate Court cannot be taken into consideration. That observation was made only for the purpose of clarifying that the Additional Sessions Judge will have to conduct a de novo trial and that trial before the Magistrate's Court will not be sufficient. But that does not mean that the statements of witnesses examined in CC No. 447/2001 before the JFCM, Vadakara would get effaced. Those statements are previous statements which can be taken full advantage of by the accused during the trial of SC No. 346/2004 for the purpose of contradiction under S.145 of the Evidence Act. Those statements can also be used for the purpose of corroboration under S.157 of the Evidence Act. Hence, Annexure A2 order is set aside and it is clarified that the petitioners can use the statements of the witnesses examined in CC No. 447/2001 for the purpose of confronting those witnesses with their previous statements. This Crl MC is disposed of accordingly.