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Sali Antony vs State Of Kerala on 19 November, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941

OP(Crl.).No.465 OF 2019

PETITIONER:

SALI ANTONY
AGED 38 YEARS
S/O. DEVASSYKUTTY, THAIPATTU HOUSE,
KANNAMALI P O, KOCHI-682 008.

BY ADV. SMT.R.SUDHA

RESPONDENTS:

1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.

2 TEENA
W/O. BINOY GEORGE, MULANJANANY HOUSE, VENGALOOR KARA,
MANAKKAD VILLAGE, VAZHITHALA P O,
THODUPUZHA, IDUKKI DISTRICT, PIN-685584.

BY ADVS.
SRI.T.R.RENJITH, PUBLIC PROSECUTOR

THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 19.11.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P. (Crl) No. 465 of 2019
2

ALEXANDER THOMAS, J.
————————————
O.P. (Crl) No. 465 of 2019
————————————
Dated this the 19th day of November, 2019

JUDGMENT

The prayer in the above Original Petition (Crl) filed under

SectionArticle 227 of the Constitution of India is as follows:

“……to stay the operation of Exhibit P4 during the
pendency of Original Petition.”

2. The petitioner has challenged the impugned Ext.P5 order dated

25-09-2019 rendered by JFCM-I, Kochi on Crl.MP No.798/2019 in C.C

No.2079/2015, whereby the plea of the petitioner/accused for recall of PW1

has been rejected by the Trial Court. The impugned Ext.P5 order reads as

follows given on page No.15.

ORDER
“1. This is a petition filed u/s.311 of Code of Criminal
Procedure.

2. Offence alleged against the accused is u/s 498A of SectionIPC. In
the petition it is stated that the accused changed his vakalath, and a
new counsel is appearing for the accused. It is also stated that, new
developments made out in the case. Therefore PW1 to be recalled
and to be re-examined. Heard both sides.

3. In the petition it is stated that, accused changed their
vakalath and new developments has been made out. There PW1 to be
recalled and re-examined. Petitioner has no case that, the re-
examination is essential for the just decision of the case. Reason
stated in the petition is not sufficient and not just, to recall and re-
examine PW1. Change of Vakalath by the accused and new
O.P. (Crl) No. 465 of 2019
3

developments in the life of PW1 is not a ground to recall and re-
examine PW1. Intention of the respondent is only to protract the
proceedings. Hence the petition lacks bonafides and it is liable to be
dismissed.

In the result the petition is dismissed.”

3. This Court had requested to the Registry to get the requisite

details from the JFCM-I, Kochi, who is dealing with C.C No.2079/2015

about the present stage of the case as per the impugned Ext.P5 order has

been passed on 25-09-2019. Now the Registry has informed by the said

Court that the trial has started in C.C No.2079/2015 and out of 11

witnesses, 3 of them were examined and NBW has been issued as against

CWs.4 to 8 as their new addresses have to be obtained and case is now

posted on 06-12-2019 for appearance of the witnesses concerned.

4. It is pointed out by the learned counsel for the petitioner that

there was a change of counsel and that the recall of PW1 for re-

examinations is highly necessary for the just decision of the case, as the

previous lawyer had not asked all the necessary questions to the witness,

etc., as the trial has not yet been completed, this Court is inclined to take

the lenient view and accordingly it is ordered that the impugned Ext.P5

rejection order dated 25-09-2019 will stand set aside and the plea of the

petitioner for recall of the PW1 will stand allowed, subject to the payment

of cost of Rs.1500/- to the District Legal Service Authority, Ernakulam and
O.P. (Crl) No. 465 of 2019
4

produce receipt in that regard before the trial court within 10 days from the

date notified for receiving certified copy of this order. In case the

petitioner does not pay the abovesaid cost within the said period then,

the abovesaid order will stand recalled and the impugned Ext.P5 order

will stand restored.

5. The Registry will forward a copy of this order to the Judicial

First Class Magistrate Court-I, Kochi, who is dealing with C.C

No.2079/2015 for necessary information.

With these observations and directions in above O.P (Crl) stands

disposed of.

Sd/-

ALEXANDER THOMAS
JUDGE
KAS
O.P. (Crl) No. 465 of 2019
5

APPENDIX
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE DIVORCE DECREE DATED
3.2.2017 IN OP NO.2378/2015.

EXHIBIT P2 TRUE COPY OF THE MARRIAGE CERTIFICATE
ISSUED TO THE 2ND RESPONDENT BY THE
MARRIAGE OFFICER DATED 11.10.2017.

EXHIBIT P3 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN
THE PETITIONER AND THE 2ND RESPONDENT DATED
27.12.2017.

EXHIBIT P4 TRUE COPY OF THE PETITION FILED BY THE
PETITIONER TO RECALL THE COMPLAINANT DATED
22.8.2019.

EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE JFCM
KOCHI CMP NO.798/2019.

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