This is an application filed by the petitioners challenging orders passed in C.M.P.No.3652/2012 in C.C.902/2005 confirmed in Crl.R.P.No.14/2013 of IInd Additional Sessions Judge, Palakkad under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioners are the accused in C.C.No.902/2005 on the file of the Judicial First Class Magistrate Court, Ottapalam. There was a counter case in respect of the same incident and that was pending as C.C.No.897/2005 before the same court. While the trial was going on, one of the weapon which was alleged to have been used by the accused in the counter case was produced and marked as M.O 3 in C.C.No.897/2005. But, later, when Pws 1 to 3 were examined in C.C.No.902/2005, the learned Public Prosecutor filed Annexure A application for getting M.O 3 marked in C.C.No.897/2005 for the purpose of identification of the weapon alleged to have been used in this case through witnesses and though the petitioners raised objection for the same, the objection was overruled and the application was allowed by the learned magistrate by the impugned Annexure B order. This was challenged by the petitioners by filing Crl.R.P.No.14/2013 before the Sessions Court, Palakkad and the same was dismissed by Annexure C order by IInd Additional Sessions Judge, Thrissur stating that it is an interlocutory order and as such no revision is maintainable and also without considering the case on merit as well. Aggrieved by the same, the present petition has been filed by the petitioner seeking the following relief:
“To quash Annexure B order in C.M.P No.3652/2012 in C.C.902/2005 pending trial on the files of Judicial First Class Magistrates Court, Ottapalam and Annexure C order in Crl.R.P No:14/2013 of Court of Sessions Palakkad (IInd Additional Sessions Judges Court, Palakad.”
3. Heard the Counsel for the petitioner and the Public Prosecutor.
4. The grievance of the petitioner is that, M.O 3 marked in C.C.No.897/2005 as a weapon alleged to have been used by the accused in that case to attack the de facto complainant and other injured was sought to be marked in C.C.No.902/2005 in which the petitioners were shown as accused. According to the Counsel for the petitioners, the prosecution had no case that this is the weapon used by the accused persons in this case and it is not known as under what provision the weapon already marked in the other case can be called upon to be produced in another case. Further, nothing mentioned in the charge that this is the weapon used for committing the offence as well. So, according to the learned Counsel, introducing a new material as evidence will affect the right of the petitioners in defending their case. Further, the Additional Sessions Judge was not justified in dismissing the revision on the ground that it is an interlocutory order and no revision will lie in view of the bar under Section 397(2) of Code of Criminal Procedure. He had relied on the decision reported in Amar Nath and Others Vs. State of Haryana and Another [1977 (4) SCC 137] in support of his case.
5. The application was opposed by the Public Prosecutor on the ground that, in fact, the weapon was seized from the house of the accused in this case on the basis of the statement given by the accused under Section 27 of the Evidence Act. But it was by mistake produced in the other case. So, the magistrate has got power under Section 311 of Code of Criminal Procedure to entertain the application and pass appropriate orders if the court is satisfied that it is necessary in the interest of justice for proper adjudication such an evidence is required. Further, since it is an order passed in an interlocutory application, the Sessions Judge was perfectly justified in dismissing the revision as not maintainable as well. So, according to the learned Public Prosecutor, there is no merit in the petition and the same is liable to be dismissed.
6. It is an admitted fact that in respect of the same incident, two crimes were registered and after investigation, final reports were filed and they were taken as C.C.No.897/2005 and 902/2005 and they are now pending before the Judicial First Class Magistrate Court, Ottapalam. It is also an admitted fact that the petitioners were shown as accused in C.C.No.902/2005 and the injured and some of the witnesses in this case were shown as accused in C.C.No.897/2005. It is also an admitted fact that these two cases are being tried as case and counter cases and trial of the case is going on simultaneously. It is also an admitted fact that one of the weapon produced in the counter case namely C.C.No.897/2005 was marked as M.O 3 in that case. But, later, it was brought to the notice of the Assistant Public Prosecutor that, the weapon was wrongly produced in the other case which ought to have been produced in the case namely C.C.No.902/2005 as it was recovered from the house of the accused persons in this case on the basis of the alleged confession statement given which is admissible according to the Assistant Public Prosecutor under Section 27 of the Evidence Act.
7. It is true that there is no provision of law mentioned in the petition filed by the Assistant Public Prosecutor seeking for production of M.O produced and marked in one case to another case and got it identified through the witnesses in this case. But, it will be seen from the petition that by mistake it was produced in the other case and in fact it was recovered from the house of the accused persons in this case as a weapon used to attack the witnesses in this case on the basis of the alleged confession statement given by the accused namely, the first accused. So, under the circumstances, if it is brought to the notice of the court and if it is convinced that it was a mistake committed by the investigating officer in producing the same before the other court and if the court is satisfied and convinced that it is a bona fide mistake and that evidence is required for the purpose of proper adjudication of the case in the interest of justice, the court can allow such prayer invoking the power under Section 311 of Code of Criminal Procedure and that was what has been done by the learned magistrate in this case. So, it cannot be said that the magistrate has committed any mistake or any illegality in passing the order.
8. Further, even in the order, the right of the petitioners has been protected because it has been specifically mentioned in the order that the truthfulness or otherwise of the statement can be considered after evidence is let in by the parties. So, that shows that appreciation of this evidence and believability of the version given by the witnesses regarding the identity of this weapon etc were left open to be considered for appreciation at the later stage of the trial and thereby even if the weapon is permitted to be identified through the witnesses that is not going to affect the right of the parties in view of the observation made by the learned magistrate in the order itself and thereby the right of the petitioners to challenge the evidentiary value of the evidence given by the witnesses regarding the identification of the weapons during the trial also has not been affected and it is for the magistrate to consider the same and come to a just conclusion at the time of deciding the case later. So, no prejudice has been caused to the petitioners also in view of the same as contended by the Counsel for the petitioners.
9. As regards the dismissal of the revision by the learned Sessions Judge is concerned, it appears to be not correct because it cannot be treated as an interlocutory order as if the decision in a petition filed during the course of the proceedings has affected the right of the parties, then, it will have the effect of a final order as far as the decision of that right is concerned and that is always amenable for revision under Section 397 of Code of Criminal Procedure. So, in view of the fact that this court can consider the legality of the order passed by the learned magistrate under Section 482 of Code of Criminal Procedure even if this court feels that the dismissal of the revision is not proper, I don't want to remand the same for this purpose in order to avoid delay and also in view of the observations made by this court in the earlier part of the order. So, there is no merit in the petition. So, the same is liable to be dismissed.
In the result, the petition is dismissed.
Office is directed to communicate this order to the concerned court immediately as the trial of the case is in progress in that court.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge