Kerala High Court
Sathi vs D.Sreevallabhan
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY,THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935
Crl.MC.No. 1436 of 2014
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[AGAINST THE ORDER DATED 22/01/2014 IN CRL.M.P.NO.1030/2013 IN
S.T. NO.54/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
KARUNAGAPPALLY]
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PETITIONER/COUNTER PETITIONER:
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SATHI,
D/O.GOURIKUTTY, NANNYADU VEEDU,
SOUTH MYNAGAPPALLY MURI, MYNAGAPPALLY VILLAGE,
KARUNAGAPPALLY TALUK.
BY ADV. SRI.SADCHITH.P.KURUP.
RESPONDENTS/PETITIONER:
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1. D.SREEVALLABHAN,
SOUPARNIKA, KULASEKHARAPURAM, KARUNAGAPPALLY,
KOLLAM, NOW AT GAURI, 34/978 A, NEAR CORPORATION OFFICE,
ANCHUMANA, EDAPPALLY.P.O, KOCHI-682 024.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI-682 031.
R2 BY PUBLIC PROSECUTOR SMT. HYMA.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 03-03-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Prv.
CRL.M.C. NO.1436/2014:
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE A1: TRUE COPY OF COMPLAINT DATED 1.6.2007 FILED BY
RADHAKRISHNAN PILLAI AGAINST PETITIONER.
ANNEXURE-A2: COPY OF PETITION DATED 9.12.2013 IN ST.54/2013 FILED BY
1ST RESPONDENT.
ANNEXURE-A3: COPY OF OBJECTION DATED 10.12.2013 FILED BY PETITIONER
IN ST.54/2013.
ANNEXURE-A4: COPY OF ORDER DATED 22.1.2014 PASSED IN
CRL.M.P.1030/2013 IN ST.54/2013 BY JUDICIAL FIRST CLASS-
MAGISTRATE COURT II,KARUNAGAPPALLY.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
K. Ramakrishnan, J.
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Crl.M.C.No.1436 of 2014
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Dated this, the 03rd day of March, 2014.
O R D E R
This is an application filed by the counter petitioner in Crl.M.P.No.1030/13 in S.T.No.54/13 on the file of the Judicial First Class Magistrate Court, No-II, Karunagappally, challenging Annexure A4 order passed by the magistrate under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioner is the accused in S.T.No.54/13 and the case was filed by the complainant under Section 138 of the Negotiable Instruments Act. In order to examine the first respondent as DW2, petitioner filed an application and summons was issued to the first respondent and he appeared through Counsel and filed an application for appointment of a commission to examine him. Without going in to the necessity of examination of the witness before the trial court, the application was allowed by the learned Magistrate by Annexure A4 order. This is being challenged by the petitioner under Section 482 of Code of Criminal Procedure.
3. Considering the nature of the application and the Crl.M.C.No.1436 of 2014 : 2 : relief claimed and the order passed, this court felt that this can be disposed of at the admission stage itself after hearing the Counsel for the petitioner and the learned Public Prosecutor dispensing with notice to first respondent.
4. The Counsel for the petitioner submitted that the the reasons stated in the petition are not sufficient to attract the power under Section 284 of Code of Criminal Procedure. So, according to the learned Counsel, the presence of the witness in court is necessary as his demeanour while giving evidence has to be assessed by the court which is required for evaluating the credibility or acceptability of the evidence of the witness.
5. The case was filed by the complainant against the petitioner alleging offences under Section 138 of the Negotiable Instruments Act. The case of the accused was that the transaction itself was done for and on behalf of DW1 examined on the side of the accused who is the petitioner herein. After examination of the complainant, the accused was questioned under Section 313 of Code of Criminal Procedure and thereafter he filed the witness list citing Adv.Smt.K. Somakumari and also her husband, the first respondent Crl.M.C.No.1436 of 2014 : 3 : herein and the said Somakumari was examined as DW1. Thereafter, when summons was served on the first respondent, he filed an application for examining him on commission. It is alleged in the petition filed by him that he had undergone a Coronary Artery Bypass Surgery in December 2012 and after the surgery, he was advised to avoid physical and mental strain and undertake long journey. He is now settled in Ernakulam and undergoing treatment in Indira Gandhi Co-operative Hospital at Ernakulam. So, instead of examining him in court, if he is permitted to be examined on commission and he expressed his willingness to give evidence. It is also stated that he is having official engagement as an industrial tribunal and it is difficult to get leave as well. It is also alleged that it was due to wreck vengeance with DW1 with whom the Counsel has some personal grievance, the petitioner has filed the application to summon DW1 and the first respondent who is her husband as a witness.
6. Section 284 of Code of Criminal Procedure deals with examination of witnesses on commission and 285 of Code of Criminal Procedure deals with to whom the commission has to be issued, which reads as follows:
Crl.M.C.No.1436 of 2014 : 4 :
Section.284: When attendance of witness may be dispensed with and commission issued:
(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:
Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.
(2) The Court may, when issuing a commission for the examination of a witness for the prosecution direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution.
Section.285: Commission to whom to be issued:
(1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found.
(2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission shall be directed to such Court or officer as the Central Government may, by notification specify in this behalf.
(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission as the Central Government may, by notification prescribe in this behalf.
7. I have gone through the order passed by the learned magistrate which is self explanatory in itself. On going Crl.M.C.No.1436 of 2014 : 5 : through the reasons given by the court below and also the reasons stated by the petitioner in the petition for dispensing his personal presence and his examination on commission, I don't find any reason to interfere with the order passed by the court below. The court below has not dismissed the application as such or did not allow the witness to be examined on behalf of the accused as well. When there are some inconvenience to the witness which satisfies the minds of the court, there is nothing wrong for the court to allow his examination to be done through some other person as provided under Section 284 of Code of Criminal Procedure. The reasons stated by the petitioner in the application appealed to the court below and the court below had accepted that reason and exercised the discretion to allow the application and examine him through commission as provided under Section 284 & 285 of Code of Criminal Procedure. If the discretion is exercised by the court below judiciously, then, this court cannot normally interfere with the discretion exercised by the court below unless it is shown before this court that it was perverse. There is nothing on record to come to such a conclusion that the order passed by the court below Crl.M.C.No.1436 of 2014 : 6 : is perverse so as to interfere by this court invoking the extra ordinary power under Section 482 of Code of Criminal Procedure.
So, there is no merit in the petition and the same is liable to be dismissed. In the result, the petition is dismissed. Communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge Crl.M.C.No.1436 of 2014 : 7 :