IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 Crl.MC.No. 5046 of 2010() ------------------------- CC.124/2006 of JUDICIAL FIRST CLASS MAGISTRATE-II, CHERTHALA .................... PETITIONER(S): COMPLAINANT: --------------------------- 1. ASSISTANT PROVIDENT FUND COMMISSIONER EMPLOYEE'S PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, BHAVISYA NIDHI BHAVAN, KALOOR, KOCHI-17. 2. ENFORCEMENT OFFICER, DISTRICT OFFICE, EMPLOYEE'S PROVIDENT FUND ORGANISATION, ALLEPPEY DISTRICT. BY ADV. DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.M.CHANDRA BOSE RESPONDENT(S): ACCUSED AND STATE: --------------------------------- 1. M/S.SOUTHERN ELECTROMAG PVT.LTD., CHENNAI INDUSTRIAL ESTATE, AROOR, ALLEPPEY REPRESENTED BY ITS MANAGING DIRECTOR. 2. LEENA JOSE, MANAGING DIRECTOR, M/S.SOUTHERN ELECTROMAG PVT.LTD., CHENNAI INDUSTRIAL ESTATE, AROOR, ALLEPPEY. 3. BOBBY JOSE, DIRECTOR, M/S.SOUTHERN ELECTROMAG PVT.LTD., CHENNAI INDUSTRIAL ESTATE, AROOR, ALLEPPEY. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. FOR R4 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl. M.C. No.5046 of 2010 -------------------------------------- Dated this the 11th day of January, 2011. ORDER Annexure-A4, summons issued to petitioner No.1 in this proceeding is challenged on the ground that it is unnecessary and an abuse of the process of court. Petitioner No.1 as the then Enforcement Officer and representing the Employees Provident Fund Organization filed Annexure-A1, complaint against the accused therein alleging offence punishable under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. While so, petitioner No.1 was promoted as Assistant Provident Fund Commissioner and is now working elsewhere. Petitioner No.2 is his successor in office and naturally, entitled to prosecute the complaint since the complaint is filed in the name of Enforcement Officer, District Office of the Employees Provident Organization. While so, petitioner No.1 received Annexure-A4, summons from the court of learned Judicial First Class Magistrate-II, Cherthala directing him to appear as witness in that court on 12.01.2011. That summons is challenged in this proceeding as above stated. Learned counsel contended that petitioners do not intend to examine petitioner No.1 as a witness and that the relevant documents could be proved through petitioner No.2 who is the present incumbent in the District Office of the Employees Provident Fund Organization as Enforcement Officer. Learned counsel has invited my attention to Annexure-A3, judgment passed by this Court in W.P.(C) No.23699 of 2008 dated August 19, 2008. There of course, Crl. M.C. No.5046 of 2010 2 the direction of learned Magistrate for appearance of the Enforcement Officer who filed the complaint and who was later transferred to represent the complainant was set aside in that case and it was made clear that unless either side summoned the said Officer as witness to tender evidence his presence need not be insisted. I also called for report from the learned Magistrate through the Registrar (Judicial). It would appear that summons was issued to petitioner No.1 under the impression that presence of petitioner No.1 as the detecting officer was required to give evidence. Now that learned counsel for petitioners submitted that petitioner No.1 is not required to give evidence on behalf of petitioners, unless petitioner No.1 is cited as a witness by the other side as defence witness or the court considered examination of petitioner No.1 as necessary I do not consider that presence of petitioner No.1 is required in the court below. Resultantly this petition is allowed and Annexure-A4, summons is quashed. It is made clear that unless the defence or the court invoking power under Section 311 of the Code of Criminal Procedure wanted presence of petitioner as witness his presence in court need not be insisted upon. THOMAS P.JOSEPH, Judge. cks