VAKKOM PURUSHOTHAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is the Finance Minister of State of Kerala. He was the speaker of the Legislative Assembly of Kerala till 4. 9. 2004. This Writ petition is filed challenging Ext. P-6 order passed by the Judicial First class Magistrate-III, Thiruvananthapuram in C. M. P. No. 3157 of 2003 and Ext. P-7 summons issued to the petitioner.

(2.) THE second respondent filed a complaint before the Judicial First class Magistrate-III, Thiruvananthapuram as C. M. P. No. 3157 of 2003 arraying Sri. A. K. Antony, the then Chief Minister and Sri. Oommen chandy, the present Chief Minister describing him as the Convenor of united Democratic Front (as he then was ). It was alleged that the accused committed the offences punishable under Sections 465 and 468 read with Section 120b of Indian Penal Code. It was alleged that the accused fabricated a Fax Message purporting to be one issued by sri. Ahammed Patel, General Secretary of All India Congress committee to the Speaker of Legislative Assembly, Kerala. It was averred that the third respondent also filed another complaint implicating Sri. A. K. Antony, Sri. Oommen Chandy, Sri. M. M. Hassan, sri. Shanavas and another person who can be identified by sight, who is conducting a S. T. D. Booth and Computer Centre near St. Joseph printers, Vazhuthacaud, Thiruvananthapuram. In that complaint also it was alleged that the accused conspired together, fabricated a Fax message purporting to be one sent by Sri. Ahammed Patel and thereby they committed the offences punishable under Sections 465, 468, 471 read with Section 120b of Indian Penal Code. The learned Magistrate forwarded that complaint to the Station House Officer, thiruvananthapuram Cantonment Police Station under Section 156 (3)of the Code of Criminal Procedure. The Sub Inspector of Cantonment police Station registered a case as Crime No. 218 of 2003 and was investigating the same. It was averred that by order dated 1. 10. 2003, the Judicial First Class Magistrate-III, Thiruvananthapuram stayed all further proceedings in C. M. P. No. 3157 of 2003 under Section 210 of the Code of Criminal Procedure as the investigation by the police was in progress in relation to the offence which was the subject-matter of inquiry. Subsequently, the learned Magistrate vacated the stay and issued summons to the petitioner to produce a document on 29. 9. 2004. The summons was issued on 18. 9. 2004. It was averred that on 22. 9. 2004 it was represented before the Court that since the petitioner had ceased, to be the Speaker of the Legislative Assembly, he was not in possession of the document mentioned in the summons. It was further averred that the learned Magistrate passed an order to issue summons to the petitioner under Section 66 and also simultaneously under Section 69 of the Code of Criminal Procedure by registered post to appear on 30. 9. 2004 to give evidence in the case. Following that order, the learned Magistrate issued summons to the petitioner under Sections 61 and 244 of the Code of Criminal procedure to appear on 30. 9. 2004 and give oral evidence. Hence, this writ Petition to quash Ext. P-6 order and Ext. P-7 summons issued in pursuance of that order alleging that the same are illegal.

(3.) THE second respondent-complainant filed a counter-affidavit raising the following contentions: What is sought to be quashed in the Writ petition are orders passed by a judicial forum and a summons issued under the provisions of the Code of Criminal Procedure and as such no writ will issue either in respect of such an order or in respect of summons. No writ will issue to a Court under Article 227 of the constitution of India. The orders impugned in the Writ Petition are revisable and no reason is stated by the petitioner why he approached this Court under Article 227 of the Constitution of India. The petitioner has not approached this Court with clean hands and hence the Writ petition is to be rejected outright. Even though initially the learned magistrate had stayed all further proceedings, that stay was vacated on 10. 9. 2004 as the complainant in the second case is not interested in prosecuting his case. It is understood that the third respondent had informed the Investigating Officer that he is not interested in pursuing the complaint. The police was playing fraud with the Court and when it came to the notice of the Court that the third respondent's complaint was not being pursued, the learned Magistrate vacated the stay on 10. 9. 2004 and continued with the enquiry ordered in C. M. P. No. 3157 of 2003. Summons was issued to the petitioner as part of that enquiry. The order impugned is perfectly legal and within the jurisdiction of the court below. It is also contended that the petitioner, as a public worker, should have shown respect to the orders of the Magistrate and should have appeared before Court in response to the summons and informed the Court that he is unconnected with the case. No litigant is entitled to communicate with the Court whatever be his status in life. The action of the petitioner in entering into a correspondence with a court of Law is highly supercilious. It shows that the petitioner has a misconceived notion that he is above law. It is also contended that if the petitioner is not in a position to produce any document, that is not a reason to contend that he shall not be summoned. He can speak about the material aspects in the case as he had dealt with Fax messages in his capacity as Speaker. He has to speak matters within his knowledge. It is contended that the objection based on Section 244 of Cr. P. C. is also unsustainable as the Magistrate is empowered to issue summons to a witness. Hence, the prayer to dismiss the Writ petition.