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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
T.M. Abdul Salam S/o Muhammed – Appellant
Versus
B. Mohammed Jamal S/o Late B.M. Hameed – Respondent
W.A. No. 1205 of 2021
Decided On : 23-09-2021
Code of Criminal Procedure, 1973 - Sections 190, 200 to 203, 202, 204 and 205 - Evidence - Notice of learned Enquiry Commissioner and Special Judge - Permit production of documents - notice - Permitting production of certain documents, instant writ appeal is filed on grounds inter alia that direction to permit production of documents by accused, even before court taking cognizance, is contrary to provisions of Code of Criminal Procedure, 1973 - Learned Enquiry Commissioner and Special Judge did not accept same he is not sure orders - Suffice to observe that unless and until cognizance is taken under Code of Criminal Procedure, 1973, presence of an accused is not required to adduce any evidence has informed that consequent to pandemic, direction of this Court, regarding disposal of CMP - Learned counsel for petitioner sought permission to produce few documents before learned Special Judge - Permitted - Petitioner shall produce documents - Learned counsel appearing for writ petitioner/first respondent, submitted that production of documents on merits would in no way preclude learned Enquiry Commissioner and Special Judge from taking cognizance there is no error in impugned order are not inclined to accept said contention.
Finding of the Court :
Complainant and of the witnesses and result of the inquiry or investigation (if any) under section 202 Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss complaint, and in every such case he shall briefly record his reasons for so doing - commencement of proceedings before Magistrates. Section 204 of Chapter XVI speaks about issue of process and Section 205 speaks about dispensation of personal attendance of the accused by Magistrate - Warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing accused to be brought or to appear at a certain time before such Magistrate or if he has no some other Magistrate having jurisdiction - Magistrate issues a summons, he may, if he sees reason so as to do, dispense wit personal attendance of the accused and permit him to appear by is pleader - Magistrate inquiring into or trying case may, in his discretion, at any stage of the proceedings - Alleged harassment learned Special Judge is not required to permit production of such documents at time of taking cognizance. Code of Criminal Procedure is law declared, and that same cannot be violated - Learned Special Judge is directed to act in accordance with the provisions of Code of Criminal Procedure, 1973, in the matter of taking cognizance of the offence - Portion of impugned order permitting production of documents is set aside
Result: Writ appeal is allowed in part.
JUDGMENT :
S. MANIKUMAR, J.
1. Challenging the order dated 7.7.2021 in W.P. (C) No. 15620 of 2020, instant writ appeal is filed.
2. Considering the materials on record, on 22nd September, 2021, we passed the following order:
2. While doing so, writ court permitted the accused/1st respondent, to produce few documents before the learned Enquiry Commissioner and Special Judge, Muvattupuzha.
3. Being aggrieved by the direction, permitting production of certain documents, instant writ appeal is filed on the grounds inter-alia that the direction to permit production of documents by the accused, even before the court taking cognizance, is contrary to the provisions of the Code of Criminal Procedure, 1973.
4. On this day, when the matter came up for hearing, Ms. Arya Reghunath, learned counsel for the 1st respondent, submitted that the matter has been heard and posted today, for orders.
5. However, posed with a question as to whether the respondent had produced any document before the learned Enquiry Commissioner and Special Judge, Mr. T.U. Ziyad, learned counsel for the appellant, submitted that the writ petitioner tendered some documents, but the same was objected to by the appellant.
6. At the time of hearing, the learned Enquiry Commissioner and Special Judge did not accept the same, however, he is not sure as to whether the documents would be considered at the time of passing final orders, as to taking of cognizance of the private complaint.
7. Learned counsel for the appellant further submitted that pendency of the instant writ appeal was also brought to the notice of the learned Enquiry Commissioner and Special Judge.
8. As the matter is posted for orders today, we are not expressing any opinion on the merits of this case, however, hope that the learned Enquiry Commissioner and Special Judge, considers the statutory provisions as regards how cognizance of a complaint has to be taken under the Code of Criminal Procedure, 1973.
9. Suffice to observe that unless and until cognizance is taken under the Code of Criminal Procedure, 1973, presence of an accused is not required to adduce any evidence. Appellant is permitted to bring it to the notice of the learned Enquiry Commissioner and Special Judge.
Registry is directed to issue copy, today itself.
Post on 23.09.2021.”
3. On this day, when the matter came up for hearing, Mr. K.B. Arun Kumar, learned counsel for the appellant, submitted that taking note of the order dated 22.09.2021, a petition was filed before the learned Enquiry Commissioner and Special Judge, Thrissur.
4. Ms. Arya Raghunath, learned counsel representing the learned counsel for the writ petitioner/first respondent, submitted that after perusing the contents of the petition filed by the respondent, the learned Enquiry Commissioner and Special Judge, directed to verify as to whether, there is any stay of proceedings in CMP Nos. 536 and 539 of 2016, and posted the matter for orders today.
5. Even though, as per order dated 22.09.2021, we observed that presence of accused is not required, at the time of taking cognizance of a complaint, to consider the correctness and legality of the impugned order, we require to elaborate on the process involved, in taking cognizance, and as to whether, the presence of the accused is required, at that stage.
6. The order impugned in the instant writ appeal is extracted hereunder:
The learned counsel for the p
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