2025:KER:28657 CRL.MC NO. 3125 OF 2025 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 CRL.MC NO. 3125 OF 2025 CRIME NO.1531/2016 OF ERNAKULAM NORTH POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT IN CC NO.85 OF 2017 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , ERNAKULAM PETITIONER/S: ARUN AGED 40 YEARS S/O SOMAN ARUN NIVAS, OLAKETTIYAMBALAM P O, MAVELIKKARA, ALAPPUZHA, PIN - 690510 BY ADV P.A.MUJEEB RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY SRI. M.C. ASHI, PP. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.04.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 2025:KER:28657 CRL.MC NO. 3125 OF 2025 2 ORDER Petitioner is the accused in CC.No.85 of 2017 on the files of the Additional Chief Judicial Magistrate’s Court, Ernakaulam. The case originated from Crime No.1531 of 2016 registered at the Ernakulam Town North Police Station for offences punishable under Sections 457, 461 and 380 of IPC. In the trial of the case, witnesses up to PW19 are examined. After examination of PW19, the petitioner filed an application under Section 311 of Cr.P.C, seeking to reopen the evidence on the premise that his counsel did not get opportunity to cross- examine the witness. The said application having been dismissed by Annexure A2 order, this Crl.M.C is filed. 2. Learned counsel for the petitioner submits that CW25 (PW19) was absent on the twelve posting dates and the case was adjourned to suit his convenience. Unfortunately, on the day when PW19 appeared in court, petitioner’s counsel was laid up. Hence, a request was made to grant an adjournment for examination by petitioner’s counsel. Surprisingly the learned Magistrate noted that petitioner did not want to cross- 2025:KER:28657 CRL.MC NO. 3125 OF 2025 3 examine that witness. Learned counsel asserts that no such submission was made on behalf of the petitioner and refers to Annexure A1 to point out that the application seeking reopening of evidence was submitted on the same day. It is contended that denial of opportunity to cross-examine a crucial witness will prejudice the petitioner in his defence. 3. I heard the learned Public Prosecutor also. 4. A perusal of the impugned order shows that, in spite of getting sufficient opportunity to cross-examine the witness, the petitioner did not choose to do so. 5. Although counsel for the petitioner asserts otherwise, there is no reason for this Court to disbelieve what has been recorded in the order. Even if there was laxity in cross-examining PW19 on the same day, denial of opportunity to cross-examine a crucial witness militates against the right to fair trial guaranteed to an accused. Taking the above factor into consideration, I am inclined to grant an opportunity for the petitioner to cross-examine the witness, subject to payment of cost. 2025:KER:28657 CRL.MC NO. 3125 OF 2025 4 In the result, the Crl.M.C is allowed and Annexure A2 order is set aside. The trial court shall permit the petitioner to cross-examine PW19, subject to payment of cost of Rs.1,000/- (Rupees one thousand only) to the District Legal Services Authority (DLSA), Ernakulam. The receipt evidencing such payment shall be produced along with a copy of this order within ten days. The trial court shall fix the date for cross- examination of PW19 and no further opportunity need be granted to the petitioner. Sd/- V.G.ARUN JUDGE SPV 2025:KER:28657 CRL.MC NO. 3125 OF 2025 5 APPENDIX OF CRL.MC 3125/2025 PETITIONER’S ANNEXURES ANNEXURE A1 TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE LEARNED MAGISTRATE ON 28/01/2025 ANNEXURE A2 CERTIFIED COPY OF THE PETITION NUMBERED AS CMP NO. 386/2025 WHICH WAS DISMISSED ON 07/03/2025 RESPONDENTS’ ANNEXURES : NIL //TRUE COPY// PA TO JUDGE