Magistrate Exceeded Jurisdiction By Vacating Order For Cross-Examination Merely Because Accused's Counsel Couldn't Appear: Kerala High Court

The Kerala High Court recently set aside the order of a Magistrate Court by which the latter vacated its own order allowing cross-examination of certain witnesses, merely on the ground that the counsel for the accused could not appear on the day the witnesses were examined.

Observing that the impugned order issued by JFCM Court at North Paravur was unjustifiable, the Single Judge Bench of Justice C.S. Dias observed:

"Having considered the facts and circumstances of the case, and the materials on record, I am of the definite view that the court below after applying its mind, exercising its discretion and by holding that the injured and the occurrence witnesses have to be examined on the same day, it was unreasonable and unjustifiable on the part of the court below to have vacated the said order for the mere reason that the counsel for the petitioner was absent on the day when the witnesses were examined. This is an addition to the fact the court below had imposed a cost of Rs.4,000/- on the petitioner to meet the expenses of CWs 1 to 4, who were present before the court below and were put to inconvenience". 

The petitioner was alleged of having committed offences under Sections 324, 323, 326 and 294(b) of IPC. The petitioner averred that after the examination of the Prosecution Witness 1 before the trial court, the petitioner had filed an application before under Section 242(3) CrPC to permit him to cross-examine all the occurrence witnesses together after recording their chief examination in a stretch.

The application was allowed by the Court below. However, on the day the case was posted for trial, the petitioner's counsel could not attend the same as he had been engaged in another court. The Magistrate thus imposed a cost of Rs.4,000/- on the petitioner to be paid to two of the witnesses as their day cost, and vacated the Order that allowed the petitioner's application (vide 'Annexure 4 Order').  

It is against the same that the petitioner filed this petition under Section 482 CrPC.

It was submitted by Advocates C.P. Udayabhanu and Navaneeth N. Nath that once an order is passed by a criminal court, it becomes functus officio and cannot review the same. In this light, the counsels argued that the impugned Annexure 4 Order was erroneous and unsustainable in law, and liable to be interfered with. 

It is in this context that the Court arrived at the finding that the court below had exceeded its authority in issuing the impugned order. 

"Thus, I am inclined to exercise the inherent powers of this Court under Section 482 of the Code of Criminal Procedure to set aside Annexure-4 order to the extent that it has vacated Annexure-2 order (earlier order)," it added. 

The Court thus set aside the impugned Order to the limited extent of vacating the previous Order and directed the latter to be restored back to file. It further directed the court below to fix the date on which the witnesses would have to be examined, and added that the counsel for the petitioner would have to cross-examine the witnesses on the said date. 

Public Prosecutor Sangeetha Raj appeared on behalf of the respondent. 

Case Title: Petro David v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 225

Click Here To Read/Download The Order