P.A. Abdul Hakeem, Kasim V. Irikoor, O. Abdurahman v. State of Kerala and Tata Global Beverages Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938** ## **Crl.MC.No. 2435 of 2016 ()** **-------------------------(AGAINST THE ORDER/JUDGMENT IN CC 3167/2010 of J.M.F.C.-I,KOCHI)** **PETITIONER(S)/ACCUSED 2, 4 AND 5:** **--------------------------------** **1. P.A.ABDUL HAKEEM, MADHYAMAM DAILY, SILVER HILL, KOZHIKODE-673012.** **2. KASIM V IRIKOOR, MADHYAMAM DAILY, SILVER HILL, KOZHIKODE-673012** **3. O. ABDURAHMAN, EDITOR, MADHYAMAM DAILY, SILVER HILL, KOZHIKODE-673012** **BY ADVS.SRI.ASHIK K.MOHAMMED ALI SMT.SAJNA T.UMMER** **RESPONDENT(S)/STATE AND COMPLAINANT: ------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. TATA GLOBAL BEVERAGES** **LIMITED (FORMERLY TATA TEA LIMITED), 1, BISHOP LEFRY ROAD, KOLKATTA, WEST BENGAL, HAVING ADMINISTRATIVE OFFICE AT WILLINGDON ISLAND, KOCHI, REPRESENTED BY SRI. PRATAP RAMDAS, CHIEF MANAGER AND POWER OF ATTORNEY HOLDER. R2 BY ADV. SRI.M.K.DAMODARAN (SR.) R2 BY ADV. SRI.ALAN PAPALI R2 BY ADV. SRI.GILBERT GEORGE CORREYA R2 BY ADV. SRI.NISHIL.P.S. R2 BY ADV. SRI.J.VIMAL R2 BY ADV. SRI.A.VELAPPAN NAIR R2 BY ADV. SRI.ANTONY ROBERT DIAS R BY PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRL.M.C.NO.2435/2016** ## **APPENDIX** **PETITIONERS EXHIBITS:** **ANNEXURE-A1: COPY OF THE JUDGMENT DATED 14/3/2016 IN OP (CRL.) NO. 60 OF 2016 OF THIS HONOURABLE COURT.** **ANNEXURE-A2: COPY OF THE DEFENCE WITNESS LIST DATED 8/3/2016 FILED IN CC NO.3167/2016** **ANNEXURE A3: COPY OF THE ORDER DATED 22/3/2016 PASSED BY THE LOWER COURT IN THE WITNESS LIST FILED IN CC NO. 3167/2016** **ANNEXURE A4: COPY OF THE PETITION DATED 15/4/2016 FILED IN CC NO. 3167/2016** **ANNEXURE A5: COPY OF THE OBJECTION DATED 16/4/2016 IN CC NO. 3167/2016.** **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.2435 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of February, 2017 ## **O R D E R** The petitioners herein, as accused Nos.2,4&5, face prosecution in C.C No.3167/2010 of the Judicial First Class Magistrate Court,Kochi,for offences punishable under Sections 500,501 and 502 IPC,which related to certain publications made in the newspaper of which the first petitioner herein is the printer and publisher and the third petitioner is the editor. 2. The news item related to an alleged encroachment into the Government land by the second respondent herein and others. The defence, as discernible from the available records and the contention of the learned counsel for the petitioners herein, is that it was substantially true reporting of true facts which the public required to know. After evidence of the complainant was over, the petitioners herein were called upon to enter on their defence. A list of witnesses was submitted by the petitioners herein mentioning the names of the nine witnesses proposed to be examined on their side. A written objection was filed by the complainant objecting to the summoning of the witnesses, specifically the witnesses mentioned as 3 and 4. Inter alia, it was contended by the complainant that, the examination of those witnesses was vexatious Crl.M.C.No.2435/2016 2 and was calculated to delay the proceedings. The court below by the impugned order in CMP No.663/2016 allowed examination of witnesses2,5 to 8 and summons were ordered to them. This is under challenge in this Crl.M.C. on a premise that it amounts to denial of fair right of letting evidence and denying an effective defence to the accused. 3. Heard both sides and examined the records. 4. The question that narrows down in the defence is, whether there was an encroachment of the Government land by few institutions/establishment referred to in the news paper report. The first and the second witnesses who were proposed to be examined were the Principal Revenue Secretary of the State and the Additional Chief Secretary of the Government, who was the former Principal Revenue Secretary. Objections were raised regarding the examination of the third witness, who was the Ex MLA and the earlier Chairman of the Assurance Committee of the Legislative Assembly. The 4[th] witness was the opposition leader who was a former Chief Minister of the State. The third witness was proposed to be examined in relation to a report submitted by the second witness about the encroachment, the notices issued to alleged encroachers and the action taken pursuant to that. The document sought to be produced through him was the report of the Legislative Assurance Committee. The 4[th] witness was not called upon to produce any documents. 3 Crl.M.C.No.2435/2016 5.As mentioned above, the question that is sought to be proved is whether there was encroachment by the complainant. Regarding it, the 4[th] witness was not expected to rely on any documentary evidence. However, he was expected to prove the illegal encroachment by various persons mentioned in the list of witness. Regarding the 3[rd] witness, it was submitted at the time of hearing by the learned counsel for the complainant that, the custodian of the report was Legislature Secretary and the 3rd witness has ceased to be an MLA. Necessarily, no evidence touching on the report can be let in through the third witness and hence his examination does not appear to be essential. 6. Coming back to the 4[th] witness, essentially the illegal encroachment which he was expected to be proved is a matter to be established by the documentary evidence which are the revenue records. Evidently, the former minister cannot be considered as the custodian of those documents. Hence the alleged encroachment can be proved only through the revenue records, which can be summoned from the custodian, who is the Principal Revenue Secretary. In that angle, the first and the second witnesses, who were summoned to prove the enquiry and the report, appear to be essential witnesses. 7. Learned counsel for the petitioners relying on the decision reported in **Sreedhar Pillay and another v.P.J.Alexander and another(1992 (2) KLT 349)** and **Esakimuthu Achari v.** Crl.M.C.No.2435/2016 4 **Assistant Collector of Excise (1986 KLT 478** ) contended that the valuable right of the accused to summon and examine the witness cannot be shut out in the interest justice. 8. Learned counsel for the respondent countered that argument by contending that, it does not confer unbridled right on the accused to summon any witness. To substantiate it, learned counsel relied on **Muthulekshmi Amma v. Prabhakaran (2008** **(3) KLT 168)** . In that decision also, primarily this court approved the right of the accused to summon any witness to establish his evidence. However, it was cautioned that section 254(2) of Cr.P.C.imposed a duty on the Magistrate to exercise discretion when the purpose of summoning the witness was bound to be unjustified, calculated to cause harassment to the complainant and witnesses or which was calculated to prolong or protract the proceedings. This was reiterated by the Supreme Court in the decision reported in **Arivazhagan v. State represented by Inspector of police(2000)3 Supreme Court Cases 328).** The Supreme Court held that the purpose of furnishing the list of witnesses and documents before the court below was for the purpose of perusing the list. On such a perusal, if the court feels that examination of at least some of the persons mentioned in the list are quite unnecessary to prove the defence plea and the time which would be needed for completing the examination of such witnesses would only result in procrastination, it is the duty of the Crl.M.C.No.2435/2016 5 court to shortlist such witnesses. Having considered the facts of this case from the angle, as mentioned above, examination of witnesses Nos. 3 and 4 appear to be unnecessary, vexatious and can only result in further delay of the proceedings. To that extent, the discretion exercised by the court below does not call for any interference. Hence,I am not inclined to accept the contention of the learned counsel for the petitioners. Accordingly, the Crl.M.C.fails and is dismissed. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.2435/2016 6