A. VISWANATHAN Vs. STATE AND ORS.

JUDGEMENT

(1.) This petition has been filed as against the order passed in C.M.P.No.8112 of 2018 in C.C.No.61 of 2009 dtd. 22/1/2019 on the file of the learned Judicial Magistrate, Paramathy thereby allowing the application filed under Sec. 311 Cr.P.C. by the first respondent herein.

(2.) Mr.R.Marudhachalamurthy, the learned counsel for the petitioner submitted that the petitioner was charged for the offences under Ss. 120(b), 408, 467, 471, 477(a) I.P.C. in C.C.No.61 of 2009 and arrayed as second accused. The first respondent complainant filed a petition under Sec. 311 Cr.P.C. to receive the forensic lab report of an expert dtd. 24/7/2009 along with the document sent for comparison and mark the same by the Scientific Assistant Grade-I, document expert. The said application was allowed. He further submitted that the prosecution examined 57 witnesses and marked 733 documents as Exhibits. Thereafter the prosecution witness was closed as early as on 22/1/2018 itself. The reasons stated in the petition under Sec. 311 Cr.P.C. is nothing but only to fill up the lacuna and it cannot be allowed. He further submitted that the prosecution filed this petition after a period of ten years that too after examining the investigation officer. He further submitted that the person who proposed to be examined is not a witness mentioned in the list of witnesses and no statement was recorded from him. Therefore, the person cannot be examined as prosecution witness and as such he prayed to set aside the order dtd. 22/1/2019.

(3.) Per contra, Mr.M.Mohamed Riyaz, Additional Public Prosecutor appearing for the first respondent submitted that after examining PW17, on perusal of police case dairy, FSL report of expert along with documents sent for comparison which is material documentary evidence is found and produced and as such the document has to be marked before the trial court, since it is nothing but FSL expert report. The said document has to be marked only through the person who gave opinion. Therefore, if the person is examined and the said document is marked, there is absolutely no prejudice would be caused to the petitioner. Therefore, he sought for dismissal of this petition.