NEELALOHITHADASAN NADAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in C.C.No.2 of 2001 on the file of Judicial First Class Magistrate III, Thiruvananthapuram is the petitioner in this Criminal Miscellaneous Case. This Criminal Miscellaneous Case is filed challenging an order passed by the learned Magistrate by which the revision petitioner was directed to deposit an amount of Rs. 1,20,000/- approximately, to meet the expense of a Commission appointed for the purpose of examination of Sri. Sheik Ahmmed, who was the Additional Private Secretary to the petitioner as a defence witness.

(2.) The short facts necessary for the disposal of this case is as follows: The petitioner is facing trial of an offence punishable under S.354 of Indian Penal Code. The allegation against the petitioner, who was the Minister for Transport, Devaswom and Forest is that at or about 1.40 PM on 22.12.1999 he outraged the modesty of the de facto complainant, who was his Secretary at the relevant time. It is alleged that the incident occurred when the de facto complainant came to the Chamber of the petitioner to discuss official matters. The prosecution evidence was over. When the matter was posted for defence evidence, the petitioner filed a list of witnesses. The learned Magistrate allowed the petitioner to examine some of them and issued summons to those witnesses. The summons issued to witness No.4 Sri. Sheik Ahammed returned unserved with an endorsement that the witness is not in India. He is stated to be working in Sultanate of Oman. The petitioner furnished the present address of the witness and prayed that summons may be issued to the witness through post. The learned Magistrate found that "there is no guidelines to serve the summons to a witness who is abroad to be served by registered post". It was also found that to serve summons through Indian Embassy and its return will take some time. The learned counsel appearing for the accused submitted that examination of witness is very vital to the accused. The learned Special Prosecutor suggested that either the summons may be issued by courier on the accused depositing the travelling expenses of the witness or a Commission may be issued under S.290 of the Code of Criminal Procedure to record the evidence of the witness. The learned Magistrate found that a commission can be issued for the examination of the witness in accordance with the provisions of S.290(b) of the Code of Criminal Procedure. The petitioner was directed to deposit reasonable expense of the prosecution to go abroad and to examine the witness on Commission. Subsequently, the accused was directed to deposit approximately an amount of Rs. 1,20,000/- as the expenses for the Commission. Challenging those orders this Criminal Miscellaneous Case is filed.

(3.) Sri. S. Vijayakumar, learned counsel appearing for the petitioner submits that an order appointing a Commissioner to go to a foreign country and record evidence can be passed only if a notification has been issued by the Central Government. He invited my attention to S.284 and 285 of the Code of Criminal Procedure, which deals with appointment of a Commission. S.285 reads as follows:--