IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE MR. JUSTICE, R. BASANTH FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 Crl.MC.No. 1440 of 2007() ------------------------- AGAINST THE ORDER DATED / / IN CMP.925/2007 IN CC.289/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... PETITIONER: ------------ MUTHULEKSHMI AMMA, KALEECKAL VEEDU, BUDHANUR PADINJATTUM MURI, BUDHANUR P.O., CHENGANOOR. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL RESPONDENTS: ACCUSED / STATE ----------------------------- 1. PRABHAKARAN P.K., MEERA BHAVAN, EZHIKKAVU, KARTHIKAPALLY. 2. STATE OF KERALA BY ADV. SRI.B.RENJITHKUMAR FOR R1 BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 1440 OF 2007 ----------------------------------------------- Dated this the 13th day of June, 2008 O R D E R Petitioner in this case is the mother of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The said complainant is not available in India and is working abroad. A power of attorney holder of the complainant has been examined as a witness(PW1) on the side of the complainant. Such power of attorney holder in the course of evidence tendered by him, had stated that the accused has his house near the house of the mother of the complainant, i.e. the petitioner herein. The accused has a case that he has nothing to do with the complainant and that the complainant is a total stranger to him. It is in that context that the power of attorney(witness) was cross examined and the witness gave the answer that the complainant's mother has her house at Karthikappally and the house of the accused is near the said house of the petitioner herein. 2. On the basis of the said statement of PW1, the accused filed an application that the petitioner, i.e., the mother of the complainant, be examined as a defence witness. That prayer was Crl.M.C. No. 1440 OF 2007 2 allowed by the learned Magistrate and summons was issued to the petitioner. The petitioner in these circumstances went to the Magistrate through counsel and prayed that she being sick and infirm, may be exempted from appearance and may not be compelled to appear. That prayer was rejected by the learned Magistrate by the impugned order. It is in these circumstances that the petitioner has come to this Court with this petition under Section 482 Cr.P.C, requesting this Court to invoke the extraordinary jurisdiction to ensure that she is not vexed and harassed by unnecessary insistence of her appearance before the court as a witness. 3. The respondent accused has entered appearance. Arguments have been heard. The complainant has not been arrayed as an accused, but she is the mother of the petitioner. I am satisfied that the said inadequacy can be ignored. 4. The right of the accused to examine a defence witnesses in a summons trial is stipulated in Section 254(2) Cr.P.C. It reads as follows: “254 (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a Crl.M.C. No. 1440 OF 2007 3 summons to any witness directing him to attend or to produce any document or other thing.” (emphasis supplied) 5. There is an effective discretion conferred on the Magistrate in the matter. Only if the Magistrate thinks it fit, the Magistrate can and need issue summons to a witness on the application filed by the accused. The right of the accused for reasonable opportunity to defend himself in indictment is very valuable and must be taken into account. But, at the same time, the Magistrate have to ensure that such right is not invoked to cause harassment to the complainant or the witnesses sought to be summoned. If the Court is satisfied that the examination of the witness is in any way relevant and necessary for the purpose of setting up the defence of the accused, such prayer shall not be turned out ordinarily. Only when the court is satisfied that the prayer to summon a witness is unjustified or is calculated to cause vexation and harassment to the witness or the complainant or is calculated to prolong or protract the proceedings shall a court exercise the discretion under Section 254(2) against an accused person. 6.That leads me to the question as to what is the purpose of Crl.M.C. No. 1440 OF 2007 4 examination of the petitioner as a defence witness in this prosecution launched by her son against the respondent accused. 7. The prosecution is under Section 138 of the Negotiable Instruments Act. The accused raises the contention that he has no connection whatsoever with the complainant. In the light of this defence, the power of attorney holder was cross examined and he stated that the house of the mother of the complainant is at Karthikappally and that the house of the accused is also near to such house. This is the only reason on which the petitioner is sought to be examined as a defence witness. There is no case or contention that the petitioner has anything to do with the accused or the alleged transaction between the complainant and the accused. Merely because the power of attorney holder has stated that the house of the mother of the complainant is near the house of the accused, I am certainly of opinion that it is not necessary or relevant to examine the mother of the complainant. The mother of the complainant, i.e. the petitioner herein, is shown to be an old woman aged about 76 years. A medical certificate has also been produced before the learned Magistrate to show that she is sick and infirm. I do further note that only in the event of gross failure Crl.M.C. No. 1440 OF 2007 5 of justice and miscarriage of justice need the powers under section 482 Cr.P.C. be invoked by this court. 8. Having considered all the relevant inputs, I am certainly of opinion that there is no justifiable cause or reason for the accused to examine the petitioner as a witness and it appears to me to be transparently evident that the attempt is to vex and harass the petitioner. No reasonable purpose is shown to exist. There is no nexus between the petitioner and the accused. Her evidence is not shown to be even relevant in the dispute which arises in this prosecution. I am, in these circumstances, satisfied that this Court cannot hesitate and has to invoke its powers under Section 482 Cr.P.C to prevent abuse of process of the Court. The process issued to the petitioner deserves to be quashed. 9. In the result, this petition is allowed. The direction issued by the learned Magistrate under Section 254(2) Cr.P.C to the petitioner to be present before the court is hereby quashed. R. BASANT, JUDGE ttb Crl.M.C. No. 1440 OF 2007 6 Crl.M.C. No. 1440 OF 2007 7