IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.REV.PET.NO. 1570 OF 2009() ------------------------------------------ AGAINST THE ORDER DATED 13/05/2009 IN CRMP 3949/2009 IN CC.582/2005 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S): APPELLANT-ACCUSED NO.2 -------------------------------------------------------- JAMES K.JOSEPH,AGED 60, S/O.LATE M.E.JOSEPH,(FORMER) EDITOR, PRINTER & PUBLISHER,RASHTRA DEEPIKA EVENING DAILY, RASHTRA DEEPIKA LIMITED,P.B.NO.7,KOTTAYAM-686 001. (RESIDING AT SILVER OAK,PTP NAGAR, THIRUVANANTHAPURAM-38) BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): STATE AND DEFACTO COMPLAINANT ----------------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. B.SANDHYA,I.P.S., W/O.K.MADHU KUMAR, DISTRICT SUPERINTENDENT OF POLICE, THRISSUR. ADV. SRI.S.RAJEEV FOR R2 SRI.N.K.UNNIKRISHNAN FOR R2 BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1570 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of June, 2009 O R D E R -------------- This revision is in challenge of order dated 13.5.2009 on C.M.P. No.5949 of 2009 in C.C. No.582 of 2005 of the court of learned Judicial First Class Magistrate-II, Thrissur. Case arose on a private complaint preferred by respondent No.2 alleging offences punishable under Sections 499 and 500 of the Indian Penal Code. After prosecution witnesses were examined, petitioner wanted witnesses to be examined on his side and accordingly a list containing eleven witnesses was submitted before the learned magistrate along with C.M.P. No.3949 of 2009 seeking permission to examine those witnesses. Learned magistrate vide the impugned order dismissed that petition observing that it is not stated either in the list of witnesses or in the petition purpose for which those witnesses are being examined, case of the year 1996 is pending for long and that intention of the petitioner is to delay the trial of the case. Learned counsel for petitioner would argue that dismissal is not justified in that learned magistrate had vide discretion under Section 254(2) of the Code of Criminal Procedure (for short, “the Code”) to permit defence CRLR.P. No.1570 of 2009 -: 2 :- witnesses to be examined, that discretion has not been properly exercised and that dismissal of the petition affected right of the petitioner and other accused to adduce evidence in defence. Learned counsel referred me to the decisions in Sreedhara Pillay v. Alexander (ILR 1992 (3) 664) and T. Nagappa v. Y.R. Muralidhar (2008 (5) SCC 633). Learned counsel for respondent No.2 would contend that it is only when the magistrate thought it fit that summons need be issued to witnesses. Materials produced before learned magistrate were not sufficient to arrive at that satisfaction. Learned counsel placed reliance on the decision of this Court in Muthulekshmi Amma v. Prabhakaran (2008(3) KLT 168). Counsel pointed out that the list of witnesses has been submitted without application of mind as indicted by the fact that witness No.4 in the schedule has expired about six years back. 2. I have gone through the decisions referred to by counsel on both sides. The principle enunciated in these decisions is that accused has right to adduce evidence in his defence and such right cannot be curtailed. At the same time the magistrate is vested with the power to decide on the facts and circumstances of the case and CRLR.P. No.1570 of 2009 -: 3 :- materials placed before him whether it is fit to issue summons on the application of the prosecution or the accused as the case may be. Section 254(2) of the Code states that the magistrate may “if he thinks fit” on the application of the prosecution or the accused issue summons to the witness. In other words, the magistrate must be satisfied that ‘it is fit’ to issue summons on the application of the prosecution or the accused. It is not as if learned magistrate is bound to issue summons the moment a request is made by the prosecution or the accused. Discretion is conferred on the learned magistrate of course to be exercised judicially keeping in mind right of the party before it to adduce evidence in support of his contention. What is required to be decided in this case is whether the materials furnished by the petitioner was sufficient to reach that satisfaction. 3. It is not disputed and going through the petition and witness list filed in the court below eleven persons were cited as witnesses on the side of petitioner. It is not stated, to prove what point the witnesses were to be examined. It is only on petitioner furnishing such materials that learned magistrate could arrive at the satisfaction whether on the facts and circumstances it is fit to issue summons to the witnesses. It is true that learned magistrate has not CRLR.P. No.1570 of 2009 -: 4 :- stated so in so many words in the order under challenge. But it is discernible from the order that learned magistrate did not think it fit to issue summons in so far as necessary particulars were not given. 4. It is contended by learned counsel that neither Sec.254(2) of the Code nor any of the provisions of Criminal Rules of Practice required that when a list of witness is submitted, points required to be proved through the witnesses must be stated. When 254(2) of the Code says that the magistrate should think it fit before summons is issued, it is clear that materials should be placed before him so that he can arrive at the satisfaction that it is fit to issue summons. To arrive at such satisfaction the purpose of examining each witnesses has to be stated. From the bald statement that witnesses are cited to prove the prosecution or defence case, the required satisfaction cannot be arrived at. That having been not done in this case I do not find any illegality, irregularity or impropriety in learned magistrate dismissing C.M.P. No.5949 of 2009. 5. At the same time right of petitioner to adduce evidence in defence cannot be curtailed. It is submitted by counsel on both sides that a similar petition (C.M.P. No.4131 of 2009) was filed by petitioner after the impugned order but that petition also was dismissed. I went CRLR.P. No.1570 of 2009 -: 5 :- through the copy of C.M.P. No.4131 of 2009 where also necessary materials from which learned magistrate could have reached satisfaction that it is fit to issue summons are not stated. Learned counsel for petitioner submits that he is prepared to file a fresh list of witnesses stating the points to be proved through the witnesses. I make it clear that notwithstanding the impugned order and dismissal of C.M.P. No.4131 of 2009 if any such list of witnesses is furnished by the petitioner or any of the other accused in the case furnishing sufficient materials from which learned magistrate could arrive the satisfaction referred to in Sec.254(2) of the Code, learned magistrate will consider that application on merits and pass appropriate orders. With the above observation, this revision is dismissed. THOMAS P.JOSEPH, JUDGE. vsv