Judgment · High Court · 2010

Crl.MC.No. 1602 of 2010() ------------------------- AGAINST THE ORDER DATED 05/10/2009 IN CRMP.10657/2008 IN CC.1004/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, THODUPUZHA .................... PETITIONER(S): DEFACTO COMPLAINANT/CW1 -------------------------------------- M.N.GOPALAN, AGED 70 YRS, S/O.NARAYANAN, MANTHALIRUMPARA, GREEN PARK COLONY, THODUPUZHA. BY ADV. SRI.P.P.THAJUDEEN SRI.MANSOOR.B.H. RESPONDENT(S): STATE/COMPLAINANT & ACCUSED ------------------------------------------

#1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING STATION HOUSE OFFICER, THODUPUZHA POLICE STATION, IDUKKI DIST.

#2. JOJO, S/O.DAMODARAN, THEKKEPARAMBIL HOUSE, EDAMARUKU KARA, UDUMPANNOOR, THODUPUZHA.

#3. JIGI, S/O.DAMODARAN, THEKKEPARAMBIL HOUSE, EDAMARUKU KARA, UDUMPANNOOR, THODUPUZHA. PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C.No.1602 of 2010 -------------------------------------- Dated this the 6th day of May, 2010. ORDER Public Prosecutor appears for respondent No.1. In the nature of the order under challenge and the order I am proposing to pass I do not consider it necessary to issue notice to respondent Nos.2 and 3, accused in the case.

#2. Petitioner is the defacto complainant in C.C.No.1004 of 2006 of the court of learned Judicial First Class Magistrate-I, Thodupuzha where respondent Nos.2 and 3 are the accused. Petitioner filed Crl.M.P.No.10657 of 2008 to examine him on commission (obviously under Section 284 of the Code of Criminal Procedure, for short, “the Code”). Learned Magistrate was not impressed by the petition, stated that there is no reason to allow the petition as no supporting document is produced and consequently dismissed the petition. That order is under challenge in this petition. Learned counsel for petitioner submits that petitioner is aged about 70 years, one of his legs is amputated, he is a heart patient, is suffering from diabetics and is bed ridden. Learned Public Prosecutor submits that no material was produced before the court below in support of the above contention.

#3. If what the petitioner stated are true certainly it is a fit case where learned Magistrate had to consider whether Section 284 of the Code could be invoked. Unfortunately no document has been produced either in the court Crl.M.C.No.1602/2010 2 below or even before me. Hence I am unable to accept the contention of petitioner at this stage. But I consider it necessary to give the petitioner an opportunity to adduce appropriate evidence before the court below. Resultantly this petition is allowed by way of remand. The order under challenge is set aside and Crl.M.P.No.10657 of 2008 is remitted to the court below for fresh consideration and disposal after giving petitioner an opportunity to adduce appropriate evidence in support of his contention. Since I have set aside the order on Crl.M.P.No.10657 of 2008 the non bailable warrant issued to the petitioner for non-appearance in the court below will stand quashed. Crl.M.A.No.2589 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge.