IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 6TH MAY 2008 / 16TH VAISAKHA 1930 Crl.MC.No. 1702 of 2008() ------------------------- AGAINST THE ORDER DATED 29/03/2008 IN CRMP.1061/2008 IN SC.309/2003 of SPECIAL.COURT (SPE/CBI)-II, ERNAKULAM .................... PETITIONERS: ACCUSED NO. 2 TO 4 & 8: ---------------------------------------------------------- 1. ILIYAN HAMZA, S/O.ILLIYAN ABDULLA, PUTHENPEEDIKAYIL HOUSE, KUZHIMANNA P.O., MALAPPURAM DISTRICT. 2. K.SAIFUDEEN, S/O. KUNJU MOHAMMED, PULLAKAYATH HOUSE, CHANGAMPUZHA NAGAR P.O., SOUTH KALAMASSERY, KOCHI. 3. MOHAMMED BASHEER MANGALASSERY, S/O. ABDUTTY, PATHANAPURAM, KIZHUPARAMBU P.O., AREAKODE VIA., MALAPPURAM . 4. ABDUL SALAM PALAPETTA, S/O. KUNJU MOIDEEN MUSALIYAR, PALAPETTA HOUSE, AKKARAPARAMBA, KUZHIMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.B.RAMAN PILLAI SRI.DELVIN JACOB MATHEWS RESPONDENTS: COMPLAINANT & STATE, ACCUSED 1, 5 TO 7 & 9: ---------------------------------------------------------------------------------------------- 1. INSPECTOR GENERAL OF POLICE, CBI/SCB, CHENNAI, REPRESENTED BY THE STANDING COUNCIL FOR CBI, HIGH COURT OF KERALA, ERNAKULAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. V.V.HAMZA, S/O. KUNJU MOHAMMED, VALIYAVEETTIL HOUSE, ALANCODE P.O., MALAPPURAM DISTRICT. CRMC 1702/2008 -2- 4. MOHAMMED KUTTY KONTHEDAN, S/O. SAIDALAVI KONTHEDAN, PULIKUNNATH HOUSE, KUZHIMANNA P.O., MALAPPURAM DISTRICT. 5. KUNHI MARAKKAR, AGED 37 YEARS, S/O. KUNHALANKUTTY, THEKKEKANDI HOUSE. 6. ABDUL GAFOOR, S/O. MOHAMMED MULLAH, MUNNATHIRI HOUSE, PALLIKAL, PALAM KULANGARA, MALAPPURAM DISTRICT. 7. USMAN MUSALIYAR, S/O. MOIDEEN HAJI, MASNDALI HOUSE, KARANTHUR P.O., KOZHIKODE DISTRICT R1 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. R2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/05/2008, ALONG WITH CRMC NO. 1703 OF 2008 CRMC NO. 1708 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl.M.C.Nos.1702 of 2008, 1708 of 2008 & 1703 of 2008 ------------------------------------------------------- Dated, this the 6th day of May, 2008 COMMON ORDER In Crl.M.C.No.1702/2008 filed by accused Nos.2 to 4 and 8 in S.C.No.309/2003 and in Crl.M.C.No.1708/2008 filed by accusedNos.1, 5 to 7 and 9, the grievance of the petitioners is that Annexure-I order (in Crl.M.C.No.1702/2008) was passed by the Special Judge on the application of the accused to have speedy trial of the case. Now the trial of the case is being expedited. In Annexure-I order the trial court directed the prosecution to take steps for producing the remaining witnesses expeditiously and that trial shall proceed uninterruptedly and without delay. But, on the very next day of passing of the said order Annexure-II petition (in Crl.M.C.No.1702/2008) was filed by the Special Prosecutor praying for steps being taken under Sections 82 and 83 of Cr.P.C. to attach the properties of CWs 18, 21, 25, 31 and 34 and to compel their presence in court for tendering evidence in the case and that the procedure sought to be so got initiated is with a view to have the trial of the case prolonged. But the Special Judge has allowed the application and ordered process be issued under Sections 82 and 83 against CWs 18, 21, 25, 31 and 34 to compel their presence in court for tendering evidence, whereas those witnesses are all employed in gulf countries and they will not be Cr.M.C. 1702, 1708, 1703/2008 -2- able to appear on the date specified in the notification and therefore, it is only an attempt on the part of the prosecuting agency to have the trial of the case protracted and therefore, Annexure-IV order (in Crl.M.C.1702/2008) which according to the petitioners is illegal, be quashed. 2. In Crl.M.C.1703/2008 filed by CWs 18, 25 and 31, they seek for an order quashing Annexure-II order which is the same as Annexure-IV order in Crl.M.C.No.1702/2008 as also Annexure-III proclamation issued under Sections 82, 87 and 90 requiring their attendance. 3. It is true that the request of the petitioners in Crl.M.C.1702/2008 and 1708/2008 to have the trial of the case expedited deserves to be considered favourably. All the same, without examining such of the witnesses who are employed abroad namely CWs 18, 21, 25, 31 and 34 of whom CWs 18, 25 and 31 have preferred Crl.M.C.1703/2008 the trial of the case cannot be closed giving an opportunity for the accused to exploit the situation rendering the prosecuting agency unable to adduce evidence. 4. I have ascertained from the counsel for the petitioners in Crl.M.C.1703/2008 as to when CWs 18, 25 and 31 will be able to appear to tender evidence before the Special Judge (SPE-CBI), Ernakulam and the learned Senior counsel Sri.V.N.Achutha Kurup Cr.M.C. 1702, 1708, 1703/2008 -3- submits that they will come over in the 2nd week of June, 2008. Accepting the undertaking so given by the senior counsel, I direct the court below to schedule the trial of the case in such a manner as to have the examination of CWs 18, 25 and 31 conducted during the 2nd week of June, 2008. However, in relation to CWs 21 and 34, the court below may proceed, if so desired by the prosecuting agency, to have their presence obtained even prior to June, 2008. It is submitted by the senior counsel for the petitioners in Crl.M.C.1703/2008 Sri.V.N.Achutha Kurup that, CBI-Investigating Agency has taken steps to impound the passport of CWs 18, 25 and 31 and that such a course would disable the petitioners in Crl.M.C.1703/2008 from coming over to their own country. Proceedings, if any, taken by the CBI to impound the passport of CWs 18, 25 and 31 shall be withdrawn forthwith. 5. In view of the above directions, the warrant, if any, issued against CWs 18, 25 and 31 who are petitioners in Crl.M.C.1703/2008 shall be withdrawn forthwith by the court below. With the above directions, the Criminal Miscellaneous Cases are disposed of. (K.P.BALACHANDRAN) JUDGE. MS