IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 19TH SEPTEMBER, 2008 / 28TH BHADRA 1930 WP(C).No. 4500 of 2006 (I) -------------------------------- ( CMP.13062/2005 of J.M.F.C.-III, PUNALUR) .................... PETITIONER: --------------- M.V. THAMBAN, ADVOCATE, `SURYA', PAVOTHIL LANE, NEAR AYYAPPANKAVU, CHITTOOR ROAD, KOCHI-18. BY ADV. SRI.ABRAHAM VAKKANAL SRI.K.V.ANIL KUMAR RESPONDENTS: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P. ASOKKUMAR, `SREEKOVIL', PANANGAD, BPC ROAD, PUNALUR. BY ADV. SRI.T.RAJESH FOR R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WP(C) No. 4500 OF 2006) PETITIONER'S EXHIBITS: Ext.P1: Copy of the judgment dtd.19.8.2005 in OP No.19522/2005. Ext.P2: Copy of the complaint before the Judicial !st Class Magistrate Court-III. Ext.P3: Copy of the judgment dated 30.11.2005. Ext.P4: Copy of the private complaint CMP No.13062/2005 before the Judicial First Class Magistrate, Punalur. Ext.P5: Copy of the summons dtd.11.1.2006. -True Copy- P.A.to Judge. V.K.MOHANAN, J. --------------------------------------------- W.P(C).No. 4500 of 2006 --------------------------------------------- Dated this the 19th day of September, 2008 J U D G M E N T A practicing lawyer before this Court is the petitioner in this writ petition who challenges Ext.P5 summons issued by the Judicial First Class Magistrate Court-III, Punalur in a private complaint. 2. The main grievance of the petitioner is the issuance of Ext.P5 summons against him, that too only for the reason that he had appeared before this Court in several cases for and on behalf of one S.Ibrahim Sherif and his family members. Along with this writ petition, he had produced Ext.P1 judgment of this Court in W.P(C). No.19522 of 2005. In the writ petition, it is also pointed out that a series of litigations are pending between the parties to Ext.P1 judgment as well as other cases. It is the case of the petitioner that as part of the above litigations between the parties, the second respondent herein had preferred a private complaint before the Judicial First Class Magistrate Court-III, Punalur. A copy of the complaint is produced along with this petition as Ext.P4. WP(C) No. 4500 of 2006 :-2-: The first accused shown in Ext.P4 complaint is the fifth respondent in Ext.P1 judgment of this Court. It is also seen from the list of witnesses shown in Ext.P4 complaint that the petitioner has been cited as fifth witness. The learned Magistrate, based upon the list of witnesses furnished by the complainant in Ext.P4 complaint, issued Ext.P5 summons which is challenged in this writ petition. 3. I have heard Mr.Abraham Vakkanal, learned counsel appearing for the petitioner as also Sri.Rajesh, counsel appearing for the second respondent. 4. Learned counsel for the petitioner pointed out that the petitioner is unnecessarily shown as witness in Ext.P4 complaint and the learned Magistrate, without conducting any enquiry, simply issued Ext.P5 summons. The learned counsel invited my attention to Ext.P4 complaint, especially para 3 of the same. Going by para 3 of Ext.P4 complaint, it appears that the case of the complainant therein is that the accused fabricated certain documents which fact, according to the WP(C) No. 4500 of 2006 :-3-: complainant, is clear from the two copies of the document produced before the court since there is substantial variation in the copies. It is pointed out in para 3 of Ext.P4 complaint that the one document produced before the Munsiff's Court in O.S.No.79 of 2002 shows two witnesses namely, one Uthaman Saroja Mandiram Nellipalli, Punalur and one Basheer, Eettivila House, Valacode, Punalur and whereas according to the complainant, in the copy produced before this Court connected with W.P(C).No.19522 of 2005, no names of such witnesses are shown. Thus, it appears that the case of the complainant is that the accused therein have fabricated the document. On the basis of the above passage contained in Ext.P4 complaint, the learned counsel submits that if that is the case of the complainant, the same can be substantiated by producing a certified copy of the documents of the above mentioned writ petition. Learned counsel for the petitioner also invited my attention to the decisions of this Court reported in Yovas v. Immanueal [1995(1) WP(C) No. 4500 of 2006 :-4-: KLT 626], Rajan v. Lakshmi [2000(2) KLT 44 Case No.52] and Abdhu v. Veeravu [1991(1) KLT 116]. In those cases, this Court had taken a consistent view after considering the privilege of counsel appearing in those cases that before issuing summons, the court has to make an enquiry and should form an opinion that the evidence to be tendered by the lawyer is on a material question of fact on which he alone can tender evidence. 4. Considering the facts and circumstances involved in the case, I am of the view that the purpose of summoning the petitioner is to substantiate the facts mentioned in paragraph 3 of Ext.P4 petition and the same can be done by producing a certified copy of the document connected with the writ petition W.P(C) No.19522 of 2005. If that be so, the petitioner need not be summoned to that court and consequently, Ext.P5 is liable to be quashed. 5. In the light of the decision cited supra, after conducting the enquiry as observed by this Court, if it appears to the court below that the presence of the WP(C) No. 4500 of 2006 :-5-: petitioner is inevitable, certainly summons can be issued, on satisfaction that the evidence to be tendered by the lawyer is on a material question of fact, on which he alone can tender evidence, especially in the light of the allegations contained in Ext.P1 complaint. In the absence of such enquiry, Ext.P5 has no basis and the purpose will be served by producing the certified copy of the document in W.P.(C) No.19522 of 2005. In the result, Ext.P5 summons is quashed. The writ petition is allowed to the above extent. V.K.Mohanan, Judge MBS/ WP(C) No. 4500 of 2006 :-6-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- O R D E R WP(C) No. 4500 of 2006 :-7-: DATED: -9-2008