ORDER : BECHU KURIAN THOMAS, J. A criminal prosecution has been pending from 2003 onwards as C.C. No.1441/2003 before the Judicial First Class Magistrates Court, Kunnamkulam. After the prosecution evidence was completed, the prosecutor filed two applications under section 311 Cr.P.C to reopen the prosecution evidence and to examine additional witnesses as per Section 294 of Cr.P.C and section 242(ii) of Cr.P.C. Those applications filed as CMP No.2016/2020 and CMP No.2015/2020 were both dismissed by the learned Magistrate by the impugned order dated 29.04.2020. The revision petitions filed by prosecution before the Sessions Court as Crl.R.P. No.23/2020 and Crl.R.P. No.24/2020 were dismissed as not maintainable. Though the prosecution did not pursue the matter thereafter, the brother of the alleged victim has preferred this petition under Section 482 Cr.P.C, challenging the orders of the learned Magistrate as well as that of the Sessions Court. 2. C.C. No.1441/2003 on the files of Judicial First Class Magistrate’s Court, Kunnamkulam is based on a police charge alleging that the accused, who was working as the Sub-Inspector of Police of the Kunnamkulam Police Station, had, on 01.09.2001, assaulted the deceased Sri. Narayanan Nair with a lathi and thereby committed the offence under Section 324 of the Indian Penal Code, 1860. After the evidence of the prosecution was completed, the Prosecutor filed CMP No.2015 of 2020 and CMP No.2016 of 2020 seeking to re-open the prosecution evidence to mark four documents under Section 294 of Cr.P.C without formal proof of those documents and to summon three witnesses. The learned Magistrate by the impugned order dated 29.4.2020 dismissed both applications after observing that the attempt of the prosecution is to indirectly do what cannot be done directly. Challenging the aforesaid orders, the Prosecutor preferred revision petitions before the Sessions Court, which was dismissed as not maintainable by order dated 30.01.2021, which is also assailed in this petition. Since the prosecution did not pursue the applications thereafter, this petition under section 482 Cr.P.C has been preferred by the brother of the victim. 3. A brief reference to the background of the case is essential. The brother of the petitioner herein late Sri. Since the prosecution did not pursue the applications thereafter, this petition under section 482 Cr.P.C has been preferred by the brother of the victim. 3. A brief reference to the background of the case is essential. The brother of the petitioner herein late Sri. Narayanan Nair was allegedly standing at a bus stop on 01.09.2001 and the accused who was the then Sub Inspector of Police is alleged to have brutally assaulted him with a lathi pursuant to which the victim was taken to the hospital and he is alleged to have succumbed to his injuries. A crime was initially registered under Section 174 as Crime No. 184/2001 before the West Fort Police Station and later due to territorial jurisdiction transferred and reregistered as FIR No.653/2001 before the Kunnamkulam Police Station. Subsequently, after investigation, a final report was filed and cognizance was taken as C.C. No.1441/2003 under Section 324 IPC. 4. In the meantime, a private complaint was filed by one of the brothers of the victim alleging that the deceased was murdered by the police. The learned Magistrate refused to take cognizance of the case against which a revision was preferred which was allowed and remitted the matter to the Magistrate. Subsequently, cognizance was taken for the offence under Sections 325, 326 and 201 read with Section 34 of the Indian Penal Code, 1860 and the case was numbered as C.C. No.197/2011. The accused challenged the order taking cognizance of the offence before this Court and by order dated 18.08.2017 in Crl.M.C No.407 of 2016, a learned Single Judge of this Court quashed the proceedings after finding that the alleged act was done in discharge of the official duty of the accused and therefore sanction was necessary. The Special Leave Petition filed against the said order was also dismissed. 5. It is also necessary to mention at this juncture that in the meantime, the petitioner had approached the Government seeking sanction for prosecuting the accused in C.C. No.197/2011. However, sanction was refused by order dated 02-07-2018, against which a writ petition has been preferred as W.P.(C) No.6502/2019, which is being disposed of by a separate order today. 6. 5. It is also necessary to mention at this juncture that in the meantime, the petitioner had approached the Government seeking sanction for prosecuting the accused in C.C. No.197/2011. However, sanction was refused by order dated 02-07-2018, against which a writ petition has been preferred as W.P.(C) No.6502/2019, which is being disposed of by a separate order today. 6. After C.C. No.197/2011 was quashed by the learned Single Judge of this Court for want of sanction, the prosecutor filed two applications in C.C No.1441/2003, for reopening the prosecution evidence and to mark the depositions given by the witnesses in C.C. No.197/2011 and to examine additional witnesses. As mentioned earlier, the said two applications were dismissed against which the victim's brother has preferred this petition under section 482 Cr.P.C challenging both the orders of the Sessions Court as well as that of the Magistrate's Court. 7. I have heard Sri Rajit and Sri. Arjun, the learned counsel for the petitioner, Sri B.G. Harindranath, the learned Senior Counsel instructed by Adv. Thomas J. Anakallunkal, the learned Counsel for the second respondent and Sri. Suresh P., the learned Public Prosecutor. 8. Though this Court raised a doubt as to whether the petitioner can be termed a victim as the wife and daughter of the deceased who are alive, have not preferred any challenge, the said issue is not being considered since the learned Senior Counsel for the second respondent submitted that they have no objection to the contentions of the petitioner being considered on merits. 9. The trial relates to an incident that occurred on 01-09-2001. The accused is being prosecuted for the offence under section 324 IPC. The prosecution filed a petition under section 311 Cr.P.C to reopen the prosecution case to examine three more witnesses who were examined in C.C. No.197/2011 which case was quashed by the High Court. They also sought marking of four additional documents which were the depositions of witnesses in C.C. No.197/2011, without its formal proof. The private complaint filed in C.C. No.197/2011 was quashed by this Court in Crl.M.C No.407/2016 and the Special Leave Petition against the said order was also dismissed. The specific case of the petitioner was that the allegation that was the subject matter in CC No. 197/2011 and that in C.C. No.1441/2003 are different. The private complaint filed in C.C. No.197/2011 was quashed by this Court in Crl.M.C No.407/2016 and the Special Leave Petition against the said order was also dismissed. The specific case of the petitioner was that the allegation that was the subject matter in CC No. 197/2011 and that in C.C. No.1441/2003 are different. There was not even an allegation in the two petitions filed by the prosecutor under section 311 Cr.P.C (produced as Annexure A13 and A14) that the evidence now sought to be introduced are essential for a just decision in the case. 10. Apart from the above, the learned Magistrate has, in the impugned order observed that earlier, an application for joint trial of C.C. No.1441/2003 and C.C. No.197/2011 was attempted, but the application was dismissed, and the revision petition against the said order was also dismissed by this Court in Crl.M.C No.5152/2013. The learned Magistrate has in the impugned order, specifically noted that earlier, in Crl.M.C No.5152/2013, this Court had already observed that the allegations in the two cases are different and hence those two cases cannot be clubbed together. The attempt to reopen the evidence of the prosecution and to mark the depositions of witnesses given in C.C. No.197/2011 is not essential for a just decision in the case. In fact, petitioner could not point out any specific reason as to how the witnesses now sought to be introduced and their depositions in another case would be essential, much less even relevant in the present proceeding. 11. The existence of a power to reopen the evidence does not mean that such a power should be exercised for the mere asking. In the impugned order, the learned Magistrate has observed that what is being attempted by the application for re-opening the evidence is to do indirectly what cannot be done directly. The said observations are wholly justified and the impugned order does not suffer from any perversity to interfere under section 482 Cr.P.C. 12. Under section 311 Cr.P.C, the Court has the discretion to summon any witness at any stage of a trial. When the evidence of a witness is felt to be essential, then the said discretion becomes a mandate. The said observations are wholly justified and the impugned order does not suffer from any perversity to interfere under section 482 Cr.P.C. 12. Under section 311 Cr.P.C, the Court has the discretion to summon any witness at any stage of a trial. When the evidence of a witness is felt to be essential, then the said discretion becomes a mandate. In the instant case, apart from there being no averment in the two petitions regarding the essentiality of reopening the evidence, the petitioner could not demonstrate the relevance of the depositions of the witnesses in another case for deciding C.C. No.1441/2003. Further, in the absence of any essential requirement to re-open the evidence, the issue falls within the realm of discretion. Since the discretion exercised by the learned Magistrate was not perverse or improper, there is no reason to interfere with the impugned orders. 13. The decisions in Hanuman Ram v. State of Rajasthan and Ors. ( AIR 2009 SC 69 ), Rajaram Prasad Yadav v. State of Bihar and Another (2013) 14 SCC 461 , Dayal Singh and Others v. State of Uttaranchal (2012) 8 SCC 263 , Paras Yadav and Others v. State of Bihar (1999) 2 SCC 126 , State of Kerala v. Madhu@Kutti Madhu ( 2021 (1) KHC 351 ) and Rajendra Prasad v. Narcotic Cell through its officer in charge, Delhi (1999) 6 SCC 110 relied upon by the petitioner only states that the determinative factor under section 311 Cr.P.C is whether it is essential to the just decision of the case. In fact, it is also stated therein that when the section confers a very wide power on the court to summon witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 14. Before concluding, it needs to be mentioned that, interestingly, the learned Public Prosecutor submitted that after the order of the learned Magistrate and that of the Sessions Court dismissing the revision as not maintainable, the prosecution made a conscious decision not to challenge the order of the learned Magistrate. Such a decision was taken as they found the impugned order to be in consonance with the law. Such a decision was taken as they found the impugned order to be in consonance with the law. Though the learned Counsel for the petitioner criticized the said turnaround of the prosecution, after considering the contentions advanced by the parties, this Court cannot identify any perversity or illegality in the stance of the prosecution. 15. As the evidence of the additional witnesses sought to be examined is not essential and the discretion under section 311 Cr.P.C has been exercised by the Magistrate properly, there is no reason to interfere with the impugned order. Hence, I find no merit in this petition and it is dismissed.