M.V. Thamban v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2008-09-19
Court Decision / Holding: Ext.P5 summons is quashed; writ petition allowed to the extent of quashing Ext.P5. The court may obtain certified copies of documents from W.P.(C). No.19522 of 2005; if, after enquiry, the court finds the petitioner’s presence inevitable, summons may be issued again.
Final Disposition: Writ petition allowed to the extent of quashing Ext.P5; Ext.P5 summons quashed.

Parties to the Case

Appellants / Petitioners

M.V. Thamban

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
P. Asokkumar

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri Abraham Vakkanal
• Sri K.V. Anil Kumar

Counsels for Respondents

• Sri T. Rajesh (for R2)
• Sri P.A. Salim (Public Prosecutor for R1)

Case Synopsis & Summary

This writ petition by M.V. Thamban challenges Ext.P5 summons issued by the Judicial First Class Magistrate Court-III, Punalur, in CMP 13062/2005, in a private complaint (Ext.P4). The petitioner contends that the summons were issued only because he had appeared before this Court as counsel for S. Ibrahim Sherif and family. Ext.P1 contains this Court's judgment in W.P.(C) No.19522 of 2005, and Ext.P4 sets out para 3 alleging that forged documents were fabricated, with discrepancies between copies; the complainant lists the petitioner as the fifth witness. The learned Magistrate, relying on the witnesses list in Ext.P4, issued Ext.P5 summons. The petitioner argues that no inquiry was conducted before summoning a lawyer and that the matter can be substantiated by certified copies from the connected writ petition. The court recalls precedents (Yovas v. Immanuel; Rajan v. Lakshmi; Abdhu v. Veeravu) noting that summoning counsel requires an enquiry into whether the counsel's evidence on a material fact is indispensable. It concludes that Ext.P5 was issued without such enquiry and can be avoided by producing certified copies from W.P.(C) No.19522 of 2005. Accordingly, Ext.P5 is quashed and the writ petition is allowed to that extent. If, after an enquiry, the court finds the presence of the petitioner inevitable, summons may be issued again.

Legal Doctrines & Maxims

Privilege of counsel appearing before the court
Before issuing summons to a lawyer, the court must make an enquiry and form an opinion that the evidence to be tendered by the lawyer is on a material question of fact on which he alone can tender evidence

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P5 summons were issued only because he previously appeared as counsel for S. Ibrahim Sherif and family. Ext.P4 para 3 alleges forged documents; no enquiry was conducted before summoning. The matter can be substantiated by certified copies from W.P.(C) No.19522 of 2005; summons are unnecessary unless an enquiry shows the lawyer's evidence is indispensable on a material fact.

Contentions of Respondents

The respondents contend that the summons were issued to substantiate the facts in Ext.P4; the petitioner is listed as the fifth witness; the court must examine to enable the complainant to establish alleged fabrication; proper procedure allows summoning after a proper enquiry.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Yovas v. Immanuel	1995(1) KLT 626	Positive	Cited to support the principle that summoning counsel requires prior enquiry into whether the lawyer’s evidence on a material fact is indispensable.
Rajan v. Lakshmi	2000(2) KLT 44	Positive	Cited for the privilege of counsel and the requirement of enquiry before issuing summons.
Abdhu v. Veeravu	1991(1) KLT 116	Positive	Cited as part of a consistent view on the need for enquiry before summoning a lawyer.
W.P.(C).No.19522 of 2005	W.P.(C).No.19522 of 2005	Mentioned Only	Referenced via Ext.P1; used to permit use of certified copies connected with that writ petition; not a controlling precedent in the present decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 19TH SEPTEMBER, 2008 / 28TH BHADRA 1930 WP(C).No. 4500 of 2006 (I) -------------------------------- ( CMP.13062/2005 of J.M.F.C.-III, PUNALUR) .................... PETITIONER: --------------- M.V. THAMBAN, ADVOCATE, `SURYA', PAVOTHIL LANE, NEAR AYYAPPANKAVU, CHITTOOR ROAD, KOCHI-18. BY ADV. SRI.ABRAHAM VAKKANAL SRI.K.V.ANIL KUMAR RESPONDENTS: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P. ASOKKUMAR, - `SREEKOVIL', PANANGAD, BPC ROAD, PUNALUR. BY ADV. SRI.T.RAJESH FOR R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX ## (WP(C) No. 4500 OF 2006) ## PETITIONER'S EXHIBITS: ## Ext.P1: Copy of the judgment dtd.19.8.2005 in OP No.19522/2005. Ext.P2: Copy of the complaint before the Judicial !st Class Magistrate Court-III. Ext.P3: Copy of the judgment dated 30.11.2005. - Ext.P4: Copy of the private complaint CMP No.13062/2005 before the Judicial First Class Magistrate, Punalur. Ext.P5: Copy of the summons dtd.11.1.2006. -True Copy- P.A.to Judge. ## **V.K.MOHANAN, J. --------------------------------------------W.P(C).No. 4500 of 2006 --------------------------------------------Dated this the 19[th] day of September, 2008** ## **J U D G M E N T** A practicing lawyer before this Court is the petitioner in this writ petition who challenges Ext.P5 summons issued by the Judicial First Class Magistrate Court-III, Punalur in a private complaint. 2. The main grievance of the petitioner is the issuance of Ext.P5 summons against him, that too only for the reason that he had appeared before this Court in several cases for and on behalf of one S.Ibrahim Sherif and his family members. Along with this writ petition, he had produced Ext.P1 judgment of this Court in W.P(C). No.19522 of 2005. In the writ petition, it is also pointed out that a series of litigations are pending between the parties to Ext.P1 judgment as well as other cases. It is the case of the petitioner that as part of the above litigations between the parties, the second respondent herein had preferred a private complaint before the Judicial First Class Magistrate Court-III, Punalur. A copy of the complaint is produced along with this petition as Ext.P4. ## **WP(C) No. 4500 of 2006** ## **:-2-:** The first accused shown in Ext.P4 complaint is the fifth respondent in Ext.P1 judgment of this Court. It is also seen from the list of witnesses shown in Ext.P4 complaint that the petitioner has been cited as fifth witness. The learned Magistrate, based upon the list of witnesses furnished by the complainant in Ext.P4 complaint, issued Ext.P5 summons which is challenged in this writ petition. 3. I have heard Mr.Abraham Vakkanal, learned counsel appearing for the petitioner as also Sri.Rajesh, counsel appearing for the second respondent. 4. Learned counsel for the petitioner pointed out that the petitioner is unnecessarily shown as witness in Ext.P4 complaint and the learned Magistrate, without conducting any enquiry, simply issued Ext.P5 summons. The learned counsel invited my attention to Ext.P4 complaint, especially para 3 of the same. Going by para 3 of Ext.P4 complaint, it appears that the case of the complainant therein is that the accused fabricated certain documents which fact, according to the ## **WP(C) No. 4500 of 2006** ## **:-3-:** complainant, is clear from the two copies of the document produced before the court since there is substantial variation in the copies. It is pointed out in para 3 of Ext.P4 complaint that the one document produced before the Munsiff's Court in O.S.No.79 of 2002 shows two witnesses namely, one Uthaman Saroja Mandiram Nellipalli, Punalur and one Basheer, Eettivila House, Valacode, Punalur and whereas according to the complainant, in the copy produced before this Court connected with W.P(C).No.19522 of 2005, no names of such witnesses are shown. Thus, it appears that the case of the complainant is that the accused therein have fabricated the document. On the basis of the above passage contained in Ext.P4 complaint, the learned counsel submits that if that is the case of the complainant, the same can be substantiated by producing a certified copy of the documents of the above mentioned writ petition. Learned counsel for the petitioner also invited my attention to the decisions of this Court reported in **Yovas** v. **Immanueal** [1995(1) **WP(C) No. 4500 of 2006** **:-4-:** KLT 626], **Rajan** v. **Lakshmi** [2000(2) KLT 44 Case No.52] and **Abdhu** v. **Veeravu** [1991(1) KLT 116]. In those cases, this Court had taken a consistent view after considering the privilege of counsel appearing in those cases that before issuing summons, the court has to make an enquiry and should form an opinion that the evidence to be tendered by the lawyer is on a material question of fact on which he alone can tender evidence. 4. Considering the facts and circumstances involved in the case, I am of the view that the purpose of summoning the petitioner is to substantiate the facts mentioned in paragraph 3 of Ext.P4 petition and the same can be done by producing a certified copy of the document connected with the writ petition W.P(C) No.19522 of 2005. If that be so, the petitioner need not be summoned to that court and consequently, Ext.P5 is liable to be quashed. 5. In the light of the decision cited supra, after conducting the enquiry as observed by this Court, if it appears to the court below that the presence of the ## **WP(C) No. 4500 of 2006** ## **:-5-:** petitioner is inevitable, certainly summons can be issued, on satisfaction that the evidence to be tendered by the lawyer is on a material question of fact, on which he alone can tender evidence, especially in the light of the allegations contained in Ext.P1 complaint. In the absence of such enquiry, Ext.P5 has no basis and the purpose will be served by producing the certified copy of the document in W.P.(C) No.19522 of 2005. In the result, Ext.P5 summons is quashed. The writ petition is allowed to the above extent. **V.K.Mohanan, Judge** MBS/ ## **WP(C) No. 4500 of 2006** **:-6-:** **V.K.MOHANAN, J.** -------------------------------------------Crl.A.NO. OF 200 -------------------------------------------- O R D E R ## **WP(C) No. 4500 of 2006** **:-7-:** DATED: -9-2008