The petitioner herein has been facing prosecution under Sections 426 and 451 of the Indian Penal Code in C.C.No.147/2011 before the Judicial First Class Magistrate Court V, Kozhikode. The prosecution examined the material witnesses in the said case, but the learned counsel for the petitioner could not cross examine the witnesses at the right stage. Though request was made on behalf of the counsel for some time to cross examine the witnesses, it was declined by the learned Magistrate, and the trial proceeded. On 29.4.2014, the petitioner filed application under Section 311 of the Code of Criminal Procedure to re-call the material witnesses for cross examination. The learned Magistrate dismissed the said application on 11.9.2014 on the ground that the application does not contain any reason to re-call the witnesses. It appears that the request was mechanically disallowed by the learned Magistrate. When a witness, who could not be cross examined Crl.M.C No.6194 of 2014 2 at the right stage, is sought to be re-called for cross examination, the purpose of recalling is nothing other than cross examination. I fail to understand why the learned Magistrate rejected the application saying that the ground for recalling is not mentioned in the application. C.M.P No.2912/2014 was made in April, 2014. But the learned Magistrate took five months to reject the application saying that it does not contain any ground to re-call. I am well satisfied that the application was not properly and judiciously considered by the learned Magistrate. It is the right of the accused to cross examine the prosecution witnesses, and whatever evidence given by the prosecution witnesses cannot be relied on by the court, if the accused was not given reasonable opportunity to cross examine the witnesses. May be, there was some laches on the part of the petitioner. But in such cases, the application can be considered, and the request can be allowed on appropriate conditions, including payment of cost. Instead of adopting such a course, the application was dismissed. This Court finds the necessity of interference in the interest of justice.
In the result, this Criminal Miscellaneous Case is allowed. The impugned order passed by the court below in C.M.P No.2912/2014 is set aside, and the court below is directed Crl.M.C No.6194 of 2014 3 to grant reasonable opportunity to the petitioner to cross examine the material witnesses as part of defence evidence or otherwise.
P.UBAID JUDGE ab