IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Crl.MC.No. 2962 of 2008() ------------------------- CC.169/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER: ACCUSED: ------------------------------------- NATARAJAN, AGED 65 YEARS, S/O.RAMAN, VELAKAD HOUSE, NATTIKA BEACH DESOM, NATTIKA VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENTS: COMPLAINANT & STATE: -------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRASANNA KUMAR, S/O.SEKHARAN, THANDAYAM PARAMBIL HOUSE, CHENTRAPPINNI EAST, CHENTRAPPINI VILLAGE, KODUNGALLORE, THRISSUR DISTRICT. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2962 of 2008 ------------------------------------------------- Dated this the 6th day of August, 2008 ORDER The petitioner is the accused in a prosecution under Sec.138 of the Negotiable Instruments Act. The trial has commenced and is at the stage of defence evidence. The petitioner had come to this Court earlier with a grievance that two witnesses cited by him are not summoned by the learned Magistrate. The said petition was disposed of as per the order dated 24/7/08 in Crl.M.C.No.2802/08. Later, as directed, the petitioner filed C.M.P.No.5883/08 to summon the said witnesses. The learned Magistrate by the impugned order, a copy of which has been placed before court in the course of arguments, rejected the said request to issue summons to the said witnesses 1 and 2. 2. The first witness is the wife of the complainant. The Crl.M.C. No. 2962 of 2008 -: 2 :- complainant resisted the prayer to issue summons to his wife. According to the petitioner, the complainant had set up a case that he had raised the money which was advanced as loan and to discharge which the cheque was issued was obtained by him by sale of his wife's property. The wife is sought to be examined to negate that contention. She, the petitioner expects, will be able to admit that there was no such sale. The 2nd witness cited is an official of the L.I.C. and he is sought to be summoned to prove that the conduct of the complainant in respect of the transaction with the L.I.C. was not above board and, in these circumstances, he is not worthy of credit. 3. The learned Magistrate, by the impugned order, turned down the prayer to issue summons those two witnesses. The petitioner claims to be aggrieved by the impugned order. The learned Magistrate undoubtedly has a discretion under Sec.254 (2) Cr.P.C. to issue summons to procure the presence of a defence witness. It is not invariable that in every case, summons should be issued as soon as the accused pays for issue of such summons. The statutory provision is very clear. Only if “the magistrate thinks it fit” need the summons be issued. That discretion was exercised against the petitioner in the impugned Crl.M.C. No. 2962 of 2008 -: 3 :- order. The impugned order undoubtedly is an interlocutory order. Law does not encourage or permit challenge against interlocutory orders, while the matter is pending before the trial court. This policy of law is clearly evident from the bar under Sec.397(2) Cr.P.C. Ordinarily and normally an aggrieved person must hence wait till the proceedings are disposed of to challenge such interlocutory orders, if necessary, along with the final orders. In an exceptional case, notwithstanding the fact that the order is interlocutory if the conscience of this Court is satisfied that failure/miscarriage of justice would otherwise result this Court has the reservoir of powers under Sec.482 Cr.P.C. to interfere with the impugned order in the interests of justice. 4. I shall not embark on a detailed discussion. Suffice it to say that I am not persuaded to agree that any such circumstances exist in this case which can justify or warrant the invocation of the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. The petitioner, if he chooses, must wait till the final order is passed to challenge the impugned interlocutory order. 5. In the result, this Crl.M.C. is dismissed. But I may Crl.M.C. No. 2962 of 2008 -: 4 :- hasten to observe that I have not intended to express any final opinion on the contentions raised on merits against the impugned order. The petitioner's option to challenge the same, if necessary, along with the final order passed in C.C.No.169/08 shall remain unfettered by the dismissal of this Crl.M.C. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 2962 of 2008 -: 5 :-