IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.MC.No. 2934 of 2010() ------------------------- --------- CC.277/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... PETITIONER(S): COMPLAINANT& PERSON SOUGHT TO BE EXAMINED AS --------------------- DEFENCE WITNESS. 1. JACOB THOMAS, PROPRIETOR, MULAMOOTTIL FINANCE CORPORATION, KOZHENCHERRY. 2. MOLLY JACOB, W/O.JACOB THOMAS, MULAMOOTTIL HOUSE, KOZHENCHERRY. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): STATE & ACCUSED: -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ,COCHIN 31. 2. SUJA.T.S., VISWA NIVAS, MADAVANA, CHEKKAKONAM, KARAKULAM P.O., THIRUVANANTHAPURAM. 695564. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.2934 OF 2010 --------------------------------------------- Dated 16th September, 2010 O R D E R First petitioner is the complainant and second respondent, the accused in C.C.277/2007 on the file of Judicial First Class Magistrate's Court-I, Pathanamthitta. Second petitioner is the wife of the first petitioner. At the defence evidence stage, second respondent filed a witness schedule. By order dated 4/6/2010 learned Magistrate disallowed the prayer to summon the complainant and instead allowed the prayer to examine the remaining two witnesses. Notice to the second witness was ordered by registered post. Second witness shown in Annexure-2 witness list is the second petitioner. Petition is filed jointly by the husband and wife to quash the order summoning second Crmc 2934/10 2 petitioner as a witness contending that second petitioner has nothing to do with the case pending before the learned Magistrate and no reason is shown why she should be examined as witness and attempt is only to protract the trial and it is a vexatious attempt and the learned Magistrate should not have allowed the application. Reliance was placed on the decision of this Court in Muthulekshmi Amma v. Prabhakaran (2008 (3) KLT 168). 2. Though notice was served on the second respondent, she did not appear. 3. Argument of the learned counsel appearing for the petitioner relying on the decision of this court in Muthulekshmi Amma's case (supra) is that the learned Magistrate should not have mechanically ordered summons to the second petitioner without considering the question whether her evidence is necessary or Crmc 2934/10 3 not. Annexure-3 order or the witness list does not show the reason for examination of the second petitioner as a witness or on what aspect she is expected to give evidence. Evidently learned Magistrate has not considered this aspect at all. In such circumstances, petition is allowed. Annexure-3 order directing summons to the second petitioner is quashed. Judicial First Class Magistrate-I, Pathanamthitta is directed to consider the question of summoning second petitioner as a witness, after hearing the second respondent and the first petitioner in accordance with law, in the light of the decision in Muthulekshmi Amma's case. M.SASIDHARAN NAMBIAR, JUDGE. uj.