IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.MC.No. 751 of 2009() ----------------------------------- CMP. NO.393/09 IN CMP. NO.4106/2008 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM . .................... PETITIONER(S): COMPLAINANT -------------------------- A.N.VISWAMBHARAN, S/O.NARAYANAN, AGED 72, BEENA COTTAGE, KATTACHALKUZHI. BY ADV. MR.S.MOHAMMED AL RAFI RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. JOSEPH THOMAS, RETD.DIRECTOR GENERAL OF POLICE (VIGILANCE), KERALA POLICE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.AMJAD ALI MR.B.RAMAN PILLAI FOR R1 MR.R.ANIL FOR R1 MR.ANIL K.MOHAMMED FOR R1 MR.SUJESH MENON V.B. FOR R1 MR.JOSEPH P.ALEX FOR R1 MR.SHYAM ARAVIND FOR R1 MR.T.ANIL KUMAR FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 751 OF 2009 =========================== Dated this the 9th day of June,2009 ORDER Petitioner is the complainant in C.M.P. 4106/2008 on the file of Addl.Chief Judicial Magistrate, Thiruvananthapuram. Annexure C complaint was filed against the first respondent alleging that he had abused a witness, the DGP (Vigilance) who was examined as a witness in C.C.523/2000, when the witness was coming out of the court after giving evidence. Learned Additional Chief Judicial Magistrate is conducting an inquiry as provided under section 202 of Code of Criminal Procedure. Apart from the complainant five witnesses including the DGP, who was allegedly abused were examined. Petitioner then filed CMP 393/2009 an application under section 91 of Code of Criminal Procedure to issue summons to Additional Director General of Police (Intelligence) to produce a report filed before the Dy.S.P., Special Branch (Intelligence) on 25.7.2008. Under Annexure D order learned Chief Judicial Magistrate dismissed the petition. This petition is filed under section 482 of the Code of Crl.M.C.751/2009 2 Criminal Procedure to quash Annexure D order and to call for the records as sought for in CMP 393/2009. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that in respect of the incident, which is being inquired by the Additional Chief Judicial Magistrate,an inquiry was conducted by the Additional Director General of Police (Intelligence)and report dated 25.7.2008 which was sought to be called for in CMP No.393/2009 is filed and invoking the power provided under section 91 of the Code of Criminal Procedure, Chief Judicial Magistrate should have called for that report and dismissal of the application is illegal. The argument of the learned counsel is that under section 244 of the Code of Criminal Procedure, in a warrant case instituted otherwise than on a police report, Magistrate is bound to issue summons to any witness directing production of any document sought for by the complainant and dismissal of the application is in violation of the provision and therefore it is to be quashed. Learned counsel also argued that Section 91 of the Code of Criminal Procedure enables the Magistrate to call for any document which is not privileged and when the report submitted by the Additional Director General of Police is relevant it should have been called for. 4. On hearing the learned counsel, I find no reason to Crl.M.C.751/2009 3 interfere with Annexure D order. The question to be considered by the learned Additional Chief Judicial Magistrate in the inquiry was whether he has to take cognizance of the offence alleged against the first respondent, based on the allegations raised in the complaint. The question whether the incident as alleged by the petitioner had taken place or not, is to be decided by the Additional Chief Judicial Magistrate based on the statements given and materials produced before him and not based on any opinion formed by the Additional Director General of Police in his inquiry as reflected in the report dated 25.7.2008. If the case of the petitioner is that any witness had deposed before the Additional Director General of Police (Intelligence)supporting his version of the incident based on which the report is filed, it is for the petitioner to examine that witness which alone could be relied by the Additional Chief Judicial Magistrate. Section 244 of the Code of Criminal Procedure applies to a case being tried by the Magistrate as a warrant trial otherwise than on a police report. That stage has not arisen at all as the Chief Judicial Magistrate is conducting only an inquiry under section 202 of the Code of Criminal Procedure. Hence petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.751/2009 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006