Magistrate has to Ensure that Examination of Witness is not to cause Harassment to the other side or the Witness sought to be Summoned

Code of Criminal Procedure, 1973 - Section 254(2) - Right of the prosecution or the accused to apply to the court for issuing summons to any witness in a summons trial - Discussed.

Held:- On going through the provisions of Section 254(2) Cr.P.C., it is manifest that an effective discretion is conferred on the Magistrate in the matter. If and only if the Magistrate thinks it fit, the Magistrate needs to issue summons to a witness on the application filed by the prosecution or the accused. The Magistrate has to ensure that the examination of the witness is not to cause harassment to the other side or the witness sought to be summoned. However, if the court is satisfied that the examination of the witness is in any way relevant and necessary for the purpose of just decision of the case, such prayer shall not be turned down. Only when the court is satisfied that the prayer to summon the witness is unjustified, the court shall turn down the request in exercise of the discretion under Section 254(2) Cr.P.C.

Facts of the Case

In this case, the complainant filed application seeking for the examination of the daughter of the accused. The reason stated in Annexure-H is that the complainant wanted to prove the matters relating to an agreement through the petitioner. No such agreement was produced before the court. The petitioner is a lady aged 22 years. The learned counsel for the petitioner has submitted that she is a post graduate in Engineering. Before summoning the petitioner, who was a total stranger to the present litigation, the court below ought to have ascertained as to whether there was any need to summon her to the court or not. No convincing reason has been stated by the learned counsel for the second respondent before this Court seeking for summoning the petitioner as a witness before the court. It is not stated in Annexure-H witness schedule that the petitioner signed any agreement as a witness. In view of the above reasons, particularly when no specific reason has been stated in compelling the issuance of summons to the petitioner, I am of the view that Annexure-H witness schedule was filed by the second respondent only for the purpose of harassing the petitioner and also the 3rd respondent, who is the accused in the case. Therefore, the order of the court below issuing summons to the petitioner cannot be justified.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

B. SUDHEENDRA KUMAR, J.

Crl.M.C. No.4347 of 2016

Dated this the 12th day of January, 2018 

PETITIONER(S)/WITNESS

SHOBHA RANI

BY ADVS.SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR 

RESPONDENT(S)/STATE, COMPLAINANT AND ACCUSED

STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. AND 2 OTHERS

R3 BY ADV. SRI.SAJU.S.A R2 BY ADV. SRI.LATHEESH SEBASTIAN R1 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH 

O R D E R

The petitioner is the daughter of the accused in C.C.No.570/2014 on the files of the Court of the Judicial Magistrate of First Class-V, Thiruvananthapuram. The offence alleged is the offence under Section 138 of the Negotiable Instruments Act. The complainant, who is the second respondent herein, filed a witness schedule before the court below requesting the court to summon the petitioner before the court as a witness. The court below, in response to the said request, issued summons to the petitioner. Aggrieved by the issuance of summons, the petitioner has approached this Court seeking inter alia for quashing Annexure-I order issuing summons to the petitioner in C.C.No.570/2014.

2. Heard both sides.

3. I have also gone through Annexure-E witness schedule. Annexure-E witness schedule does not state any reason for seeking for issuance of summons to the petitioner. Thereupon, Annexure-G order was passed by the court below directing the second respondent to file a fresh witness schedule. Thereafter, the second respondent filed Annexure-H witness schedule mentioning the name and address of the petitioner.

4. The right of the prosecution or the accused to apply to the court for issuing summons to any witness in a summons trial is stipulated in Section 254(2) Cr.P.C., which reads as follows:- 

“254 (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing”.

On going through the provisions of Section 254(2) Cr.P.C., it is manifest that an effective discretion is conferred on the Magistrate in the matter. If and only if the Magistrate thinks it fit, the Magistrate needs to issue summons to a witness on the application filed by the prosecution or the accused. The Magistrate has to ensure that the examination of the witness is not to cause harassment to the other side or the witness sought to be summoned. However, if the court is satisfied that the examination of the witness is in any way relevant and necessary for the purpose of just decision of the case, such prayer shall not be turned down. Only when the court is satisfied that the prayer to summon the witness is unjustified, the court shall turn down the request in exercise of the discretion under Section 254(2) Cr.P.C.

5. In this case, the complainant filed application seeking for the examination of the daughter of the accused. The reason stated in Annexure-H is that the complainant wanted to prove the matters relating to an agreement through the petitioner. No such agreement was produced before the court. The petitioner is a lady aged 22 years. The learned counsel for the petitioner has submitted that she is a post graduate in Engineering. Before summoning the petitioner, who was a total stranger to the present litigation, the court below ought to have ascertained as to whether there was any need to summon her to the court or not. No convincing reason has been stated by the learned counsel for the second respondent before this Court seeking for summoning the petitioner as a witness before the court. It is not stated in Annexure-H witness schedule that the petitioner signed any agreement as a witness. In view of the above reasons, particularly when no specific reason has been stated in compelling the issuance of summons to the petitioner, I am of the view that Annexure-H witness schedule was filed by the second respondent only for the purpose of harassing the petitioner and also the 3rd respondent, who is the accused in the case. Therefore, the order of the court below issuing summons to the petitioner cannot be justified. For the said reason, I am inclined to set aside order dated 6/6/2016, passed by the court below issuing summons to the petitioner in C.C.No.570/2014. It is ordered accordingly.

In the result, this Crl.M.C. stands allowed.