Petitioners herein are the two accused in C.C. No. 39/2010 of the Judicial First Class Magistrate Court-I, Varkala. The prosecution examined CW1 to CW3 as material witnesses on 29.04.2014 during trial. On the said day, the learned counsel for the petitioners could not cross examine the witnesses due to ill health. Later, the petitioners filed application as CMP No. 5921/2014 under Section 311 Cr.P.C. to recall these witnesses for cross examination. The said application was dismissed by the learned Magistrate by order dated 30.06.2014. the said order is sought to be quashed under Section 482 Cr.P.C. 2. On hearing the learned counsel, and on perusing the proceedings, I find that the learned counsel for the petitioners appearing in the trial court had satisfactory explanation for his inability to cross examine the witnesses on the day of examination. I do not think that cross examination was Crl.M.C.. No. 5039/2014 2 deliberately avoided by the learned counsel as delaying tactics, as observed by the learned Magistrate. The explanation given by the learned counsel is acceptable to this Court, and I feel that an opportunity will have to be granted to the petitioners to cross examine the material witnesses.
In the result, this Crl.M.C. is allowed. The impugned order passed by the learned Magistrate in CMP No. 5921/2014 is set aside, and the learned Magistrate is directed to grant reasonable opportunity to the petitioners to re-call and cross examine CW1 to CW3.
Sd/-
P. UBAID, JUDGE sd // TRUE COPY // P.A. TO JUDGE