IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 18992 of 2010(Q) ------------------------- CRL.MP.1383/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, SULTHANBATHERY ................ PETITIONER : ----------------- K.SUGATHAN, S/O. KUMARAN, AGED 49 YEARS, NAVANYA HOUSE, KALPETTA P.O., WAYANAD DISTRICT. BY ADV. SRI. P.K. RAMKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. T.P.ALEX, S/O. PUNNOOS, AGED 43 YEARS, RESIDING AT ANNIE MAHAL, P.O.KALPETTA, WAYANAD DISTRICT. R1 BY GOVT. PLEADER SMT. M.K. PUSHPALATHA R2 BY ADV. SRI.T.C.GOVINDA SWAMY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 18992 of 2010(Q) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE DEPOSITION OF PW2 IN CC.348/08 BEFORE JFCM II, SULTHANBATHERY. EXT.P2 : COPY OF THE ORDER PASSED BY THE HONOURABLE HIGH COURT OF KERALA IN CRL.MC. 581/10. EXT.P3 : COPY OF THE ORDER PASSED JFCM II SULTHANBATHERY IN C.M.P. 1383/09 OF CC.348/08. EXT.P4 : COPY OF THE SUMMONS ISSUED BY JFCM II SULTHANBATHERY IN CC.348/08. RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE CRL.MP NO. 1383/2009 IN CC.NO.348/08 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE-II, SULTHANBATHERY. //TRUE COPY// P.S. TO JUDGE Mn M.SASIDHARAN NAMBIAR, J. ------------------------- W.P (C) No.18992 of 2010 -------------------------- Dated this the 12th October, 2010 J U D G M E N T Petitioner, who was examined as PW2 in C.C No.348/2008 by Judicial First Class Magistrate Court, Sulthan Bathery, was summoned under Ext.P4 to appear before the learned Magistrate based on Ext.P3 order. Petition is filed under Article 227 of the Constitution of India for a direction to Judicial First Class Magistrate Court-II, Sulthan Bathery not to summon the petitioner to take his signature and hand writing for comparing it with a document produced in the court and denied by the petitioner. 2. Learned counsel appearing for the petitioner and 2nd respondent were heard. 3. Learned counsel appearing for the petitioner submitted that Ext.P2 order in Crl.M.C No.581/2010 passed by this Court, though provides that the question whether the document produced in court could be sent to an expert and get a report, it was not a statement as stated in the order but only a piece of paper where some W.P (C) No.18992 of 2010 2 figures are written with description. It is pointed out that Ext.P3 order based on which summons was issued, was not passed after hearing the petitioner and in such circumstances, learned Magistrate cannot direct the petitioner to appear and furnish his hand-writing or signature. 4. Learned counsel appearing for the respondent submitted that Ext.P3 order was challenged before this Court by the complainant in the case by filing Crl.M.C 581/2010 and it was dismissed under Ext.P2 order and petitioner has not challenged Ext.P3 order and so he is not entitled to challenge Ext.P4 summons, issued pursuant to Ext.P3 order. Learned counsel also argued that it is only an abuse of process of the court. Though learned counsel appearing for the petitioner challenged the summons on the ground that it would amount to testimonial compulsion, learned counsel did not press the contention. The only question arise for consideration on the arguments is whether the summons issued by the learned Magistrate directing the petitioner to appear is to be interfered. As W.P (C) No.18992 of 2010 3 rightly pointed out by the learned counsel appearing for the petitioner Ext.P3 order, based on which summons issued, is not challenged in the writ petition. The complainant had in fact challenged that order earlier unsuccessfully. A witness is not entitled to be heard before issuing summons. If a Magistrate finds that the evidence of a person is relevant and necessary for the purpose of either proving or disproving the case, summons could be issued to direct the witness to appear. When the case of the 1st respondent is that the document which was shown to the petitioner when examined as PW2 was written in the handwriting of petitioner and it was denied, the question whether the said document was written by petitioner, it would definitely affect the main contention raised in the petition, learned Magistrate was justified in summoning the petitioner. I find no reason to interfere with the summons issued or the direction issued by the learned Magistrate. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE ma