AISWARYA V.K. vs STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-04-30
Court Decision / Holding: Crl.M.C devoid of merits and liable to be dismissed; Annexure-A6 order upheld; High Court declines to interfere under Section 482 CrPC; petition dismissed.
Final Disposition: Crl.M.C dismissed

Parties to the Case

Appellants / Petitioners

AISWARYA V.K.

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
Girija Thampi

Legal Representation & Advocates

Counsels for Petitioners

• Arun Chand
• S. Vinodkumar (Vanchiyoor)
• Anandu R.
• Majid Muhammed K.
• Bharat Vijay P.

Counsels for Respondents

• Public Prosecutor, High Court of Kerala
• Shajin S. Hameed
• Shylaja S.L.

Case Synopsis & Summary

This is a Criminal Miscellaneous Case under Section 482 Cr.P.C. before the High Court of Kerala at Ernakulam, involving AISWARYA V.K., accused in CC 1362/2016 under Sections 138 and 142 of the Negotiable Instruments Act. The petition challenges an order dated 8.3.2021 in Crl.M.P.1400/2021 issued by the Temporary Special Court of the Judicial Magistrate of First Class, Thiruvananthapuram, which permitted a witness list (Annexure-A4) including a person named Shameer, who was not shown to be connected to the transaction. The petitioner contends that the Magistrate failed to exercise due discretion in admitting the witness list and that the proposed witness has no bearing on the case, making the order erroneous and liable to be set aside. The 2nd respondent had testified earlier and, after cross-examination, filed Annexure-A4 seeking to summon the proposed witness. The petitioner argued lack of purpose and irrelevance of the witness, objecting to Annexure-A5. The Magistrate relied on Section 254(2) Cr.P.C read with Section 145(2) NI Act to admit the witness, asserting that excluding evidence at the initial stage would prejudice justice. The High Court, referencing Shobha Rani v. State, held that while Section 254(2) Cr.P.C endows wide discretion to summon witnesses, the court must ensure that examination is not harassing and is relevant. The Court found no error in Annexure-A6 and dismissed the petition, preserving the Magistrate’s discretion and the right to cross-examine. The decision upholds the impugned order and declines intervention under Section 482 Cr.P.C.

Provisions of Law Cited

Section 482 of the Code of Criminal Procedure (CrPC)Section 254(2) Cr.P.C.Section 145(2) of the Negotiable Instruments Act, 1881Sections 138 and 142 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Wide discretion of Magistrates under Section 254(2) CrPC to issue summons
Inherent powers of the High Court under Section 482 CrPC
Harassment and fairness principle in witness examination

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicant contends that the Magistrate acted without due discretion in accepting Annexure-A4 (the witness list) as it includes a person not connected to the transaction. The witness is unnecessary and irrelevant, and the order allowing the witness would cause harassment and prejudice. The petition asserts that the Magistrate should have dismissed Annexure-A4 and restricted examination to witnesses cited in Annexure-A1, with proper application of mind.

Contentions of Respondents

Respondent contends that Section 254(2) Cr.P.C confers wide discretion to summon witnesses and that the proposed witness’s testimony should be examined after cross-examination where relevant. It is submitted that denying the witness would hamper the prosecution’s case and that the court should not prematurely shut out evidence if it is relevant and necessary for a just decision.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shobha Rani v. State of Kerala and others	2018 (2) KHC 73	Positive	Cited to support the principle that the Magistrate has wide discretion under Section 254(2) Cr.P.C to issue summons, but the examination must not be harassing; the court applied this doctrine in evaluating the challenged order.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 30TH DAY OF APRIL 2021 / 10TH VAISAKHA, 1943** **Crl.MC.No.1678 OF 2021(H)** **AGAINST THE ORDER/JUDGMENT IN CC 1362/2016 OF TEMPORARY COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS , THIRUVANANTHAPURAM (JMFC XII)** ## **PETITIONER/ACCUSED:** **AISWARYA V.K. AGED 37 YEARS D/O. KOMALAVALLY, 'ARUN NIVAS', C.G.R.A.D-4, UDAYAGIRI, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM-695 587** **BY ADVS. SRI.ARUN CHAND SRI.S.VINODKUMAR (VANCHIYOOR) SHRI.ANANDU R. SHRI.MAJID MUHAMMED K. SHRI.BHARAT VIJAY P.** ## **RESPONDENT/STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** **2 GIRIJA THAMPI AGED 73 YEARS D/O. KARTHIYANI, T.C.NO.36/37(2), HOUSE NO.64, MANAVA NAGAR, PALKULANGARA,PETTAH P.O., THIRUVANANTHAPURAM-695 024** **R2 BY ADV. SRI.SHAJIN S.HAMEED** **SMT. SHYLAJA S.L, PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.04.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.1678 OF 2021** **2** ## **ORDER** **Dated this the 30th day of April 2021** This petition is filed under Section 482 of the Code of Criminal Procedure to set aside the order dated 8.3.2021 in Crl.M.P.1400/2021 in C.C 1362/2016 (Annexure -A6) of the Court of the Temporary Special Court of the Judicial Magistrate of First Class for the Trial of cases under Section 138 of the N.I. Act, Thiruvananthapuram. 2. It is the case of the petitioner that she is the accused in C.C 1362/2016 filed by the 2[nd] respondent against her for offences punishable under Sections 138 and 142 of the Negotiable Instruments Act, 1881. The 2[nd] respondent was cross-examined on 15.1.2021 as discernible from Annexure-A3 deposition. The 2[nd] respondent had not testified that any other person was directly or indirectly involved in the alleged transaction between the petitioner and the 2[nd] respondent. **Crl.MC.No.1678 OF 2021** **3** Nevertheless, the 2[nd] respondent through her counsel filed Annexure-A4 witness list, to summon one Mr.Shameer who is in no way related to the transaction. The learned counsel for the petitioner filed Annexure-A5 objection to the witness list. Nevertheless, the learned Magistrate by Annexure-A6 allowed the witness list without application of mind. It is settled law that Courts should exercise due discretion before issuing summons to any witness. Annexure-A6 is erroneous and wrong and is liable to be set aside. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the 1[st] respondent. In view of the relief that I propose to pass, I have dispensed with notice to the 2[nd] respondent. 4. The grievance of the petitioner is that the 2[nd] respondent seeks to summon a witness who is in no **Crl.MC.No.1678 OF 2021** **4** way connected with the alleged transaction. The learned Magistrate without proper application of mind accepted Annexure-A4 witness list, which is erroneous and wrong and is liable to bet set aside. 5. It is a fact that in Annexure-A1 complaint the 2[nd] respondent had cited only herself and two other witnesses. Subsequently, after her examination on 5.1.2021, she filed Annexure-A4 witness list citing one Sri.Shameer to be examined as a witness to prove her case. The petitioner through her counsel filed Annexure-A5 objection, inter alia, contending that no purpose has been stated in the witness list for examining the said witness and the testimony of the proposed witness will have no bearing on the case. Hence, the witness list be rejected. 6. The learned Magistrate by the impugned Annexure-A6 order, relying on Section 254(2) of the Code of Criminal Procedure read with Section 145 (2) **Crl.MC.No.1678 OF 2021** **5** of the Negotiable Instruments Act, held that shutting out evidence of the complainant at the initial stage would be against the interest of justice and that no prejudice would be caused to the petitioner by examining the proposed witness. 7. The power of the Magistrate under Section 254 (2) of the Code of Criminal Procedure is wide enough conferring him the discretion to issue summons to any witness directing him to attend or to produce any document or other thing. 8. This Court in **Shobha Rani v. State of Kerala and others** [2018 (2) KHC 73] has gone on to hold that the language in Section 254(2) of the Cr.P.C is manifest and confers wide discretion on the Magistrates to issue summons to witness on an application filed by the prosecution or the accused. Nevertheless, the Magistrate has to ensure that the examination of the witness is not to cause harassment **Crl.MC.No.1678 OF 2021** **6** to the other side or the witness sought to be examined. If the court is satisfied that the examination of the witness is relevant and necessary for a just decision, such prayer cannot be turned down. 9. The 2[nd] respondent has filed Annexure-A4 witness list for the purpose of proving her case. Whether the testimony of the proposed witness is relevant and not, is a matter to be considered by the Court after the said witness lets in evidence. It is not for the petitioner to dictate terms as to who has to be examined on behalf of the 2[nd] respondent to prove her case. The petitioner cannot perceive what the proposed witness is likely to depose. However, the petitioner has every right to cross-examine the proposed witness. Going by the language in Section 254(2) of the Cr.P.C and the law laid down by this Court in **Shobha Rani** (supra), I am of the considered opinion that there is no error or illegality in Annexure- **7** ## **Crl.MC.No.1678 OF 2021** A6 order passed by the learned Magistrate in accepting Annexure-A4 witness list, who has applied her mind and discretion in accepting Annexure-A4. I do not find any circumstances or grounds to interfere with the said order by invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure. The Crl.M.C is devoid of any merits and is only liable to be dismissed. **Sd/-** **C.S.DIAS** ma /True copy/ **JUDGE** **Crl.MC.No.1678 OF 2021** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE-A1** **THE TRUE COPY OF THE COMPLAINT IN C.M.P.NO.2778 OF 2014 IN S.T.NO.1449 OF 2014 FILED BY THE 2ND RESPONDENT AGAINST THE PETITIONER HEREIN BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM** ## **ANNEXURE-A2** **THE TRUE COPY OF THE AFFIDAVIT IN LIEU OF CHIEF EXAMINATION DATED 05.01.2021 FILED BY THE 2ND RESPONDENT IN CC NO.1362/2016 BEFORE THE COURT BELOW** **ANNEXURE-A3 THE TRUE COPY OF THE SWORN DEPOSITION OF THE 2ND RESPONDENT DATED 05.01.2021 FILED BEFORE THE COURT BELOW** ## **ANNEXURE-A4** - **THE TRUE COPY OF THE WITNESS SCHEDULE LIST VIDE CRL.M.P.NO.1400/2021 IN CC NO.1362/2016 FILED BEFORE THE COURT BELOW** - **ANNEXURE-A5 THE TRUE COPY OF THE OBJECTION IN ANNEXURE A4 DATED 08.03.2021 FILED BY THE COUNSEL FOR THE PETITIONER BEFORE THE COURT BELOW** - **ANNEXURE-A6** **THE TRUE COPY OF THE ORDER IN CRL.M.P.NO.1400/2021 IN CC NO.1362/2016 DATED 08.03.2021 OF THE COURT BELOW**