The court has the discretion to refuse an application for summons if it considers that it is made for the purpose of vexation or delay or to defeat the ends of justice, but must provide reasons for such refusal.

J U D G M E N T

The petitioner has approached this court challenging Ext.P3 order dated 20-11-2023 in CMP No.42/2023 in S.C No.1673/2019. The petitioner faces allegations of having committed offences under Sections 354A, 354D and 506 (i) of the Indian Penal Code and Section 11 (iv) read with 12 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). In SC No.1673/2019 he filed Ext.P1 application along with Ext.P2 witness list seeking issuance of summons by the court for examination of the witnesses and for the purpose of marking the documents mentioned in Ext.P2. It is submitted that the said application was dismissed by Ext.P3 without considering the prayer in terms of the provisions contained in Section 233 (3) of the Cr. P.C. It is submitted that it is clear from a reading of the aforesaid provision that court was bound to issue such process for compelling the attendance of any witness for production of any document or thing unless it considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or to defeat the ends of justice. The learned counsel also placed reliance on the judgments of the Supreme Court in T. Nagappa v. Y.R. Muralidhar; (2008) 5 SCC 633 and Mrs. Kalyani Baskar v. Mrs. M.S. Sampoornam; (2007) 2 SCC 258 in support of his contention.

2. Having heard the learned counsel for the petitioner and the learned Public Prosecutor I am of the opinion that Ext.P3 need not be set aside in its entirety. A reading of the order shows that the District Police Chief, Thiruvananthpuram was sought to be summoned for the production of a complaint stated to have been filed by the petitioner on 08-03-2021. Exts.P1 and P2 do not indicate as to how that a complaint was relevant to the matter before the court. Therefore, the learned Sessions Judge was correct in rejecting the application in so far as it relates to issuance of summons to the District Police Chief, Thiruvananthapuram. Coming to the second witness, the petitioner wanted to summon the Manager, State Bank of India, Poovar branch along with account account statement of the petitioner bearing No.3464 maintained in the said branch for the purpose of proving that certain payments have been made by the petitioner to PW2 (mother of the victim). It is clear that if the petitioner wishes to rely on any account statement, it is not necessary to prove the same by summoning the Bank Manager and he may, if necessary, summon the statement of accounts along with necessary certification and seek to rely on the same having regard to the provisions contained in Section 4 of the Bankers' Books Evidence Act, 1891. Therefore, it will be sufficient if summons is issued for the production of the said document by the court. Coming to the third witness namely the Superintendent Special Sub Jail, Neyyattinkara, I am of the opinion that the petitioner can be allowed to summon that witness along with Visitors' Book pertaining to the period when the petitioner was in custody to prove that PW2 had visited the petitioner on several occasions. Therefore Ext.P3 order is set aside to the extent it relates witness Nos.3 mentioned in Ext.P2. The court shall issue summons to witness No.3 mentioned in Ext.P2 to produce the Visitors' Book Register for the relevant period. In so far as it relates to the bank statement, the court shall issue summons for production of the said document and it is not necessary to examine the Bank Manager for the said purpose. I am inclined to issue the aforesaid directions also keeping in mind the observations of the Supreme Court in paragraph 9 of T. Nagappa (supra) and paragraph 12 of Kalyani Baskar (surpa).

Original petition is disposed of as above.