K. Padmanabhan Nair, J.
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.
4. The petitioner has filed a reply affidavit reiterating the contentions raised in the Writ Petition. It is contended that the original summons issued to the petitioner was one under Section 91 of the Code of Criminal Procedure to attend and produce (or cause to be produced) the documents referred to in the summons. The petitioner had submitted before Court in writing that since he had ceased to be the Speaker, he is not in possession of the documents mentioned in the summons. Following that submission, the learned Magistrate had passed Ext.P-6 order directing the petitioner to appear in Court to give oral evidence. It is contended that the challenge against Ext.P-6 under Article 227 is maintainable. It is contended that maintainability was considered as a preliminary point at the time of admission itself and that objection was overruled. It is contended that on 22.9.2004 when summons was served in the office of the Minister, the petitioner had already booked on a flight to Delhi to attend a meeting of the Finance Ministers of all the States, convened by the Honourable Prime Minister. It is in that circumstance the petitioner sent a communication to the learned Magistrate informing his inability to attend the Court on that day. Thereafter the learned Magistrate passed Ext.P-6 order directing the petitioner to appear and give evidence on 30.9.2004. It is averred that the petitioner returned to Thiruvananthapuram only on 25.9.2004 evening. 26.9.2004 was a Sunday. On 27.9.2004, the petitioner applied for a certified copy of the order; but the copy was not supplied on that day. It is averred that because of the urgency of the matter, the petitioner filed the Writ Petition on 28.9.2004. The certified Copies of the documents were supplied to the petitioner on 28.9.2004. Hence, he could not file a Criminal Revision Petition. It is averred that even in this proceedings this Court can invoke the powers conferred under Section 482 Cr.P.C. and pass appropriate orders. It is again reiterated that the original summons was to produce documents, but the subsequent summons was to give evidence and the learned Magistrate has no jurisdiction to issue such a summons.
5. The third respondent filed a counter affidavit contending that the Writ Petition is not maintainable. It was contended that Ext.P-6 order was passed because of Ext.P-5 reply issued by the petitioner to the Magistrate. It is contended that there is no legal infirmity or factual error in Ext.P-6 order and hence it cannot be interfered in this proceedings.
6. When the matter was taken up for argument, the learned counsel appearing for the 2nd respondent has raised a preliminary objection that the Writ Petition is not maintainable. In order to appreciate that contention, it is necessary to state few facts about the case. Because of the factual dispute, this Court called for the Trial Court records at the time of admission. I have perused the entire records, though the Writ Petition is filed under Article 227 of the Constitution of India.
7. On 24.7.2003, the second respondent filed C.M. P.No. 3157 of 2003 through Adv. Sri. S. Venugopal against Sri. A.K. Antony, the then Chief Minister and Sri. Oommen Chandy, the present Chief Minister alleging that they committed the offences punishable under Sections 465, 468 read with Section 120B of Indian Penal Code. A list of eight witnesses was given in that complaint and that list does not contain the name of the petitioner. The documents relied on for filing the complaint were the reports published in Mathrubhoomi Daily dated 22.7.2003 and Malayala Manorama Daily dated 22.7.2003 and 23.7.2003. On 24.7.2003, the complaint was posted to 28.7.2003 and then to 29.7.2003. On 29.7.2003, the sworn statement of the second respondent was recorded and the case was posted to 5.8.2003 for examination of C.W.2 K. Muraleedharan. On that day, C.W.2 filed application for time to produce a document. The case was adjourned to 18.8.2003 and from 18.8.2003 to 25.8.2003. On 25.8.2003, C.W.2 produced a document stating that that was the Fax Message in original received by one of the M.L.As. On 27.8.2003, the second respondent had filed an affidavit before the learned Magistrate stating that Sri. Ahammed Patel himself had subsequently admitted that he had sent the disputed Fax Message to the Chief Minister, but had subsequently withdrawn the same. The learned Magistrate directed the Principal Secretary concerned to file a reply to the sworn statement. The Principal Secretary has filed a reply stating that a Fax Message from Sri. Ahammed Patel was received on the night of 20.7.2003, and in the early morning of 21.7.2003 itself the same in original was handed over to the Honourable Speaker of the House and no copy of the Fax Message was available in the Office of the Chief Minister. The learned Magistrate, therefore, passed an order to issue a Letter of Request in Form No. 29 to the Honourable Speaker of the Kerala Legislative Assembly to cause production of the Fax Messages and posted the case to 18.9.2003. The case was suo motu advanced to 16.9.2003 (wrongly shown as 16.10.2003 in the order sheet). On that day, it was noted by the learned Magistrate that the Peon deputed from the Court to deliver the letter of request filed a report stating that he offered the Letter of Request to the officials of the Office of the Speaker, but they refused to receive the same without assigning any reason. The learned Magistrate directed the office to comply with the formalities, if any, and repeat the Letter of Request and posted the case to 18.9.2003. The case was again advanced to 17.9.2003 (date wrongly shown as 17.10.2003 in the order sheet). The learned Magistrate addressed the Legislative Secretary to cause to produce the Fax Messages or its copy since Rule 252 of the Criminal Rules of Practice had already been complied with. The case was again adjourned to 18.9.2003. The documents were not produced by the Legislative Secretary. He sent a reply to the Court stating that the Speaker has got strong objection in producing the documents or its copies. The case was adjourned to 1.10.2003.
8. On 1.10.2003, the third respondent -- Ajith filed another complaint through the very same Advocate impleading four named persons and another person who can be identified by sight. The first 2 accused are the accused in the complaint filed by the second respondent. The other accused are Sri. M.M. Hassan, the Minister for Parliamentary Affairs, Sri. Shanavas, brother of the 3rd accused and a person conducting Computer Centre at Vazhuthacaud. In that complaint also 8 witnesses were cited. The petitioner is not one among them. The learned Magistrate forwarded that complaint to the Station House Officer, Cantonment Police Station under Section 156(3) of Cr.P.C. and Sub Inspector registered Crime No. 218 of 2003 on the same day under Sections 465, 468, 471 read with Section 120B of Indian Penal Code. The investigation of that case was subsequently taken over by the C.B.C.I.D. and re-numbered as Cr.302/CR/03 of C.B.C.I.D., Thiruvananthapuram.
9. On 1.10.2003, the enquiry was adjourned to 18.10.2003 and on that day the learned Magistrate stayed all further proceedings under Section 210 of the Code of Criminal Procedure. The case was adjourned from time to time. On 4.9.2004 the learned Magistrate passed an order to call for a report from the Investigating Officer regarding the progress of investigation of the Crime No. 302/CR/03 of C.B.C.I.D., Thiruvananthapuram and posted the case to 9.9.2004. On 9.9.2004, the Investigating Officer in Crime No. 302 of 2003 filed a report. The learned Magistrate found that it does not contain the details called for. So, the Investigating Officer was directed to produce the Case Diary itself for perusal of the Magistrate and the case was posted to 10.9.2004. The complainant filed a petition to vacate the stay. On 10.9.2004, the Investigating Officer produced the Case Diary. The learned Magistrate perused the Case Diary and found that the police had closed the investigation on the ground of factual mistake. The learned Magistrate vacated the stay and posted the petition for further enquiry. On that day he ordered summons to Sri. Veluswamy M. P., Principal General Manager, B.S.N.L (Land Phone), Thiruvananthapuram to produce the particulars sought for by the complainant and also to issue a Letter of Request to the Legislative Secretary, Kerala Legislative Assembly to produce the Fax Message received in original. The 2nd respondent filed a petition along with an additional Witness List requesting to issue summons to the petitioner for production of a document and for his examination. On 17.9.2004 the learned Magistrate passed an order as follows:
'Issue summons to the witness No. 1 Sri. Vakkom Purushothaman for production of document and for his examination on 24.9.2004 and issue also summons to C.G.M. witness No. 2 on 30.9.2004 for production of a document and to give evidence. Witness No, 1 being a Minister, issue summons to him as per Section 66 Cr.P.C. and also simultaneously under Section 69 Cr.P.C. by registered post directly to the witness.'
The case was posted to 24.9.2004. On 22.9.2004 the petitioner did not appear. On that day, the learned Magistrate received a letter from the petitioner which reads as follows:
'This is to inform that I have ceased to be the Speaker of the Kerala Legislative Assembly. I am not in possession of the documents mentioned in the summons. The legal position is that the Speaker is not answerable to the Court with respect to the actions in exercise of the powers of the Speaker.'
On that day, the learned Magistrate passed Ext.P-6 order and posted the case to 30.9.2004. In pursuance of Ext.P-6 order, Ext.P-7 summons was also issued.
10. The present Writ Petition is filed challenging Ext.P-6 order and Ext.P-7 summons.
11. The learned counsel appearing for the second respondent vehemently argued that the letter addressed to a Judicial Officer containing attack on the conduct and character will amount to contempt of Court and as such action under the provisions of the Contempt of Courts Act has to be taken against the petitioner. He relied on the decisions reported in Tuljaram v. Governor, Reserve Bank, AIR 1939 Mad. 257, Ram Prasad v. The King, AIR 1949 Pat. 435, The State v. Krishna Madho, AIR 1952 All. 86, Nirmal Singh v. Gainda Mal, AIR 1954 Pepsu 91, State v. Maqbool Ahmad, AIR 1958 All. 728, Jawand Singh v. Om Parkash, AIR 1959 Pun. 632, In re Suit No. 1947 of 1952, AIR 1959 Cal. 174 and Advocate General v. Thevar Tharakan, 1960 KLT 338, in support of his argument.
12. The records of the case show that the second respondent filed a petition before the learned Magistrate for initiating proceedings under the Contempt of Courts Act against the petitioner. That petition was dismissed. The second respondent filed W.P.(C)No. 34814 of 2003 before this Court challenging that order and praying that proceedings under the provisions of the Contempt of Courts Act may be initiated against the petitioner. By judgment dated 17.11.2003, this Court dismissed that Writ Petition. That being the position, the second respondent is not entitled to raise that issue again in this proceedings.
13. It is argued by the learned counsel appearing for 2nd respondent as well as the 3rd respondent that no writ will issue against a Court acting within its jurisdiction. The learned counsel relied on the decision reported in Nalla Koya v. Administrator, Union Territories of Laccadives, 1968 KLT 60, wherein a Division Bench of this Court held that a writ of certiorari cannot be issued to a Civil Court. He also relied on a decision reported in Yesudasan Nadar v. Principal Munsiff, 1991 (2) KLT SN 33 Case No. 43, and argued that a writ will not lie against a Court acting in exercise of its judicial functions. For the very same proposition, the learned counsel relied on the decision of this Court reported in Abdul Azeez v. Union of India, 1992 (1) KLT SN 22 Case No. 29, wherein a learned Single Judge of this Court held that a Writ Petition against a pending criminal case cannot be entertained. In George v. Consolidated Footwears Ltd., 1997 (2) KLT 471, a learned Single Judge of this Court held that a writ cannot lie against Court acting in exercise of its judicial functions. The learned counsel also relied on a decision reported in State, through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and Ors., JT 2003 (4) SC 605, in which it was held as follows:--
'It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep Subordinate Courts and Tribunal's within the bounds of their authority and not to correct mere errors.'
In Sadhana Lodh v. National Insurance Co. Ltd., AIR 2003 SC 1561, it was held that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less an error of law. In Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682, the Apex Court held that the High Court cannot act like an Appellate Court and reappreciate or re-evaluate the evidence while exercising certiorari or supervisory jurisdiction and only a patent error, which does not require establishment by lengthy and complicated arguments or by long-drawn process of reasoning is amenable to certiorari jurisdiction. In Smt. Shail v. Manoj Kumar, (2004) 4 SCC 785, the Supreme Court held as follows:
'High Court not only has power to make directions by way of guiding inferior Court or Tribunal as to manner in which it would proceed hence, but also has jurisdiction itself to pass such a decision or direction as the inferior Court or Tribunal should have made. But power under, to be exercised sparingly and with care and caution.'
14. The learned counsel appearing for the petitioner has argued that the first summons issued to the petitioner was under Section 91 of the Cr.P.C. to produce a document alone. It is argued that even accepting for argument sake that the petitioner failed to comply with the direction in the summons, no summons to give oral evidence should have been issued and the learned Magistrate acted without jurisdiction in issuing such a summons. He relied on a decision reported in Parmeshwari Devi v. State, AIR 1977 SC 403. The learned counsel for the petitioner also relied on the decision reported in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, in which the Apex Court held as follows:
'It is settled that the High Court can exercise its power of judicial review in criminal matters. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226.'
It is submitted that even assuming that the petitioner has got an alternate remedy of filing revision, that is not a ground to dismiss the Writ Petition. The petitioner has explained the circumstances under which he approached this Court under Article 227 of the Constitution. It is argued that even if there is a procedural irregularity, in view of the patent error committed by the Magistrate the order is to be quashed.
15. The specific case put forward by the petitioner is that the summons originally issued was only to produce a document and solely because the petitioner could not produce that document, summons issued to him subsequently was to appear and give oral evidence. In Parmeswari Devi's case (supra) it was held by the Supreme Court that if the first summons issued was to produce a document alone, the Court can issue a subsequent summons to that person to appear and give oral evidence solely because he did not produce the document. The error pointed out is a patent error and no elaborate discussion of evidence is necessary to consider that point. Hence, I hold that the illegality committed by the learned Magistrate, is to be rectified either in exercise of the powers conferred on the Court under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India. Hence, the Writ Petition is maintainable.
16. The facts of the case stated above shows that originally the Court issued a summons to the Principal Secretary to Government to produce the Fax Message. The Principal Secretary informed the Court that the Fax Message was received in the Chief Minister's office during the night of 20.7.2003 and on the early morning of 21.7.2003 the Fax Message received in its original was handed over to the Honourable Speaker. In view of the statement of the Principal Secretary, the learned Magistrate issued a Letter of Request in Form No. 29 of the Criminal Rules of Practice to the Honourable Speaker of the Legislative Assembly. The records show that a Peon of the Magistrate Court was deputed to serve the letter of request. On 16.9.2003, the Peon deputed to handover the Letter of Request filed a report before the Court stating that when he attempted to deliver the Letter of Request to the Speaker's office, the officials of the Speaker's office refused to receive the same without assigning any reason.
17. The Writ Petition is silent regarding the attempt made by the learned Magistrate to serve the Letter of Request in Form No. 29 on the petitioner. The second respondent in the counter statement also had not stated anything about the refusal by the office of the Speaker to receive the Letter of Request addressed to the Speaker. This fact came to my notice only after when I went through the records after reserving the Writ Petition for judgment on 5.1.2005. So, the case was reposted to 17.2.2005. I brought this fact to the notice of the counsel appearing for the petitioner, who informed this Court that he was also not aware of that fact and so, he can make a submission only after discussing the matter with the petitioner. The case was adjourned to 18.2.2005 for further hearing and clarification on that point. The learned counsel appearing for the petitioner was not able to give any explanation on that day and sought further time. The case was adjourned to 28.2.2005. On that day also the counsel appearing for the petitioner did not offer any explanation or deny the report filed by the messenger. Hence, the case was again taken up for orders.
18. It is not disputed by the petitioner that his office refused to accept the Letter of Request in Form No. 29 addressed to the Speaker and the Peon deputed from the Court to serve the Letter of Request was sent away by the office of the Speaker without assigning any reason. Though sufficient opportunity was afforded to the petitioner, no explanation is offered as to why the office of the Speaker refused to accept the Letter of Request addressed to the Speaker and why a Class IV employee of the Court, who went to the office of the Speaker to handover an official letter addressed to the Speaker was sent away without assigning any reason. It is evidently clear that the office of the Speaker refused to accept the Letter of Request addressed to the Speaker with the knowledge of the petitioner.
19. Until 1958, there was no clear cut provision to deal with production of a document which is in the possession of House of Parliament or of an Assembly of a State. With effect from 19.11.1958, the Criminal Rules of Practice was amended. Rule 294A was added, which provided that the summons for the production of a document in the custody of a House of Parliament or of a Legislature of a State shall be by a Letter of Request as in Form No. 92A. Subsequently the rules were amended and now the relevant rule is Rule 252 of Criminal Rules of Practice. Rule 252 (1) provides that summons for the production of a document in the custody of the House of Parliament or of a Legislature of a State shall be by Letter of Request as in Judicial Form No. 29. Form No. 29 is also relevant, which reads thus:--
FORM No. 29
[See Rule 252(1)]
LETTER OF REQUEST FOR PRODUCTION OF RECORDS IN THE CUSTODY OF A HOUSE OF PARLIAMENT OR OF A LEGISLATURE OF A STATE
From..........................................To
The Speaker of the House of the People/The Chairman of the Council of States,
Parliament House, New Delhi.
The Speaker of the Legislative Assembly of................................
The President of Legislative Council of .......................................
(Cause title)
Sir,
(Where mere production of document is required):-- In the above proceeding, the complainant/accused proposes to rely upon the documents specified in the Annexure, which are in the custody of the House of the People/The Council of States/Legislative Assembly/Legislative Council I have to request you to move the House if you have no objection, to grant leave for the production of documents in my Court and, if such leave is granted, to arrange to send the documents/certified copies of the documents so as to reach me on or before...... by registered post (A.D.) or through an officer in the Secretariat of the House.
(Where oral evidence of an officer in the Secretariat of the House is required):--In the above proceedings, the complainant/accused propose to examine.... an officer in the Secretariat of the House of the People/the Council of States/Legislative Assembly/Legislative Council (or any duly informed officer in the Secretariat of the House) as a witness in regard to matter specified in the Annexure, I have to request you to move the House, if you have no objection to grant leave for the examination of the said officer in my Court, and if leave is granted to direct the officer to appear in my Court at 11 a.m. on.......
Dated the.... 19....
Yours faithfully,
ANNEXURE
(1).................................................'.
The rules were framed by the High Court of Kerala in exercise of the powers conferred on it under Article 227 of the Constitution of India and also Section 477 of the Code of Criminal Procedure. The Rules were framed with the previous approval of the Government of Kerala. A reading of the Form of letter of request shows that it is neither a command nor a demand made by the Court to a Speaker so as to make him answerable to the Court with respect of any action taken by him in exercise of the powers of the Speaker, but a humble request with humility by which the Speaker of the House is requested to place the request made by the Court before the Legislative Assembly. A reading of Rule 252(1) along with the Form No. 29 shows that in order to avoid a confrontation between Judiciary and Legislature it was agreed to by both wings that as and when the Court requires a document in the possession of the House, the Court must make a request in Form No. 29 and the Speaker shall place such request before the House. A reading of the form shows that it is the right or privilege of the Members of the Legislative Assembly to take a decision whether a document or its copy which is in the custody of the House of Legislative Assembly shall be given to the Court. A reading of the relevant Form shows that though the letter of request to be made to the Speaker contain the words 'if you have no objection', a reading of the entire form shows that the Speaker has no discretion to take a decision of his own and deny the request. Rules of Procedure and Conduct of Business in the Kerala State Assembly does not contain any specific provision regarding the procedure to be followed by the Speaker on receipt of a Letter of Request. Rule 161 deals with intimation to Speaker by Magistrate of arrest, detention, etc. of a member and Rule 162 deals with intimation to the Speaker on release of a member. Rule 163 deals with procedure to be followed on receipt of the communication received from the Magistrate under Rule 161 and 162. Rule 164 deals with the precincts of the Assembly and Rule 165 deals with the service of legal process. So, it is clear that as and when a Letter of Request is received, the Speaker is bound to place the matter before the House in accordance with Rules and it is for the House to take a decision and not for the Speaker. When the Speaker refuses even to accept such a request, he is actually denying the members of the House a chance to exercise their right or privilege. The petitioner may not be answerable to Court. But is a Speaker above the very House which elected him as the Speaker? Who actually acted illegally? Ts it the Magistrate who acted in accordance with the procedure accepted and approved by the Legislature also or is it the petitioner, who denied the right of the members of the Legislative Assembly who alone have the right to take a decision on the Letter of Request? Had the Letter of Request been accepted and placed before the Legislative Assembly, that would have been end of the matter. If the petitioner was of the opinion that the document was not in the custody of the House, he ought to have informed the Magistrate that fact.
20. Since the petitioner refused to accept the Letter of Request, the learned Magistrate sent a letter to the Legislative Secretary to produce the Fax Message since Rule 252 of Criminal Rules of Practice was complied with. The Legislative Secretary sent a reply stating that the Honourable Speaker has got strong objection to produce the Fax Message or its copies. The case was adjourned and the learned Magistrate stayed further proceedings. On 10.9.2004 after vacating the stay, the learned Magistrate passed an order to issue Letter of Request in Form No. 29 to the Legislative Secretary to produce the Fax Message. There is nothing on record to show that in fact such a letter of request was issued to the Legislative Secretary. On 17.9.2004, the second respondent filed a petition for orally examining the petitioner and also to issue a summons to the office of the Speaker to produce certain documents. Paragraph 5 of the affidavit reads as follows:
'It has also become necessary to examine Sri. Vakkom Purushothaman, the Hon'ble Minister for Finance, who was then the Hon'ble Speaker, who was dealing with the Fax Messages in his capacity as such. It has also become necessary to issue summons to the office of the Speaker under Form No. 29 to produce certain documents.'
The averments in paragraph 6 are also very relevant, which reads as follows:
'Unless these witnesses are examined and documents summoned, there will be manifest injustice and miscarriage of justice.'
A reading of paragraphs 5 and 6 of the affidavit filed by the 2nd respondent makes it abundantly clear that the request of the second respondent was to issue summons to the petitioner to give oral evidence. A separate request was made to issue a letter of request in Form No. 29 to the office of the Speaker for production of the document. So, there were two separate and distinct requests. Along with the petition the second respondent has produced a list of witnesses, which reads as follows:
_______________________________________________________________________________'Sl. Name of the Documents to be RemarksNo. witnesses produced________________________________________________________________________________1 Sri. Vakkom B. Purushothaman, Copy of the Fax message To beHon'ble Finance Minister, sent by Sri. Ahammed Patel, summonedGovernment of Kerala, A.I.C.C. General Secretary to theSecretariat, Thiruvananthapuram Office of the Kerala Chief Ministeron 20.7.2003 & 21.7.2003,which was given to the then Speaker** ** ** ** **.'________________________________________________________________________________
Though the prayer in the application was to issue summons to the petitioner to appear and give oral evidence alone, in the list of witnesses, the request was to issue summons to him to produce the document alone. There was no reference to give any oral evidence in the remarks column. So, the prayer in the list was not in consonance with the prayer in the petition. In fact it was against the reliefs sought for in the petition.
21. The learned Magistrate without any application of mind and without considering the prayer in the application had passed an order in that application 'Allowed'. But in the proceedings paper the learned Magistrate passed an order to issue summons to the petitioner for production of the document and also for his examination on 24.9.2004. It was also ordered to issue summons to the petitioner as per Section 66 and also under Section 69 Cr.P.C. by registered post. Though in the order sheet the learned Magistrate passed an order to issue summons to the petitioner to appear and give oral evidence and also to produce a document. The summons issued to the petitioner was to produce a document alone, as could be seen from Ext.P-4. The learned Magistrate affixed his signature in that summons without looking into the order he had passed either in the petition or in the proceedings paper. To that summons, the petitioner issued Ext.P-5 reply. Though in the reply affidavit filed by the petitioner he had raised a contention that he was unable to attend the Court as he had to attend a conference of Finance Ministers of all States convened by the Prime Minister, in the reply given to the Magistrate no such fact was stated. On the other hand, a reading of Ext.P-5 will show that the petitioner did not produce the document because of his stand that Speaker is not answerable to any Court. So, it is evidently clear that the stand now taken by the petitioner that he was only informing the Court about his inability to produce the documents as he will be away on that date is not true.
22. Section 91 of the Code of Criminal Procedure deals with summons to produce documents or other things. Sections 61 and 244 of Cr.P.C. deals with summons to the witnesses.
23. Prior to the amendment of the Code of Criminal Procedure in the year 1973, Form No. XXXI of Cr.P.C. was the form of summons to be issued to the witnesses under Sections 68 and 252 of the Code of Criminal Procedure, 1898. It reads as follows:
'XXXI--SUMMONS TO WITNESS
(See Sections 68 and 252)
To..................of..............
WHEREAS complaint has been made before me that...... of..... has(or is suspected to have) committed the offence of (state the offence concisely with time and place), and it appears to me that you are likely to give material evidence for the prosecution;
You are hereby summoned to appear before this Court on the....... day of............ next atten O' clock in the forenoon, to testify what you know concerning the matter of the said complaint, and not to depart thence without leave of the Court; and you are hereby warned that, if you shall without just excuse neglect or refuse to appear on the said date, a warrant will be issued to compel your attendance.
Given under my hand and the seal of the Court, this......... 18 ....(Seal) (Signature)'
No particular form of summons was prescribed under old Code to issue summons to a witness under Section 94 of the Code of Criminal Procedure, 1898 for production of the documents/records. Form No. 92 of Travancore Criminal Rules of Practice and Form No. 92 of Madras Criminal Rules of Practice were used. The Form No. 92 was as follows:
'FORM No. 92
Summons to produce
(Section 94, Criminal Procedure Code)
In the Court of the.................................Magistrate of....
Case No. .....of 19......
Complainant/
Accused
To.......................of....................
WHEREAS a complaint has been made before this Court that the accused has (is suspected to have) committed the offence of............... and it has been made to appear to this Court that the production of the undermentioned documents/things now in your possession or power is necessary/desirable for the purpose of the.............. before this Court, you are hereby summoned to attend and produce (or cause to be produced) the said documents/things before this Court at 11 a.m. on the .....day of....... 19.....Herein fail not.
Given under my hand and seal of the Court, this.....day of...... 19....
(Seal) MagistrateParticulars of documents/things.'
After the amendment of the Code of Criminal Procedure in the year 1973, Form No. 33 in the Schedule II deals with summons to witnesses, which is as follows:
'FORM No. 33
SUMMONS TO WITNESS
(See Sections 61 and 244)
To..............................oF...................................
WHEREAS complaint has been made before me that....... (name of the accused) of ......(address) has (or is suspected to have) committed the offence of (state the offence) concisely with time and place, and it appears to me that you are likely to give material evidence or to produce any document or other thing for the prosecution;
You are hereby summoned to appear before this Court on the.....day of....next atten O'clock in the forenoon, to produce such document or thing or to testify what you know concerning the matter of the said complaint, and not to depart thence without leave of the Court; and you are hereby warned that, if you shall without justice excuse neglect or refuse to appear on the said date, a warrant will be issued to compel your attendance.
Dated this.....day of.......20.......(Seal of the Court) (Signature)'
Form No. 28 in the Criminal Rules of Practice is used for summoning to produce documents. The form is as follows:
'FORM No. 28
SUMMONS TO PRODUCE DOCUMENTS OR THINGS
(Section 91, Criminal Procedure Code)
In the Court of..........................Magistrate of........Case No. ..of 19.......
Complainant/
Accused
To................of.....................
WHEREAS a complaint has been made before this Court that the accused has (is suspected to have) committed the offence of ... and it has been made to appear to this Court that the production of the undermentioned document/things now in your possession or power is necessary/desirable for the purpose of the..... before this Court, you are hereby summoned to attend and produce (or cause to be produced) the said documents/things before this Court at 11 a.m. on the....day of... 19....
Herein fail not.
Given under my hand and seal of the Court this........day of.... 19...
(seal) MagistrateParticulars of documents/things.'
24. A comparison of the forms of summons under the old Criminal Procedure Code and 1973 Criminal Procedure Code shows that there are vital distinction between the forms prescribed under the old and new Code. Form No. XXXI under the Code of Criminal Procedure, 1898 can be used for giving oral evidence alone. But after 1973, the Form No. 33 prescribed is a composite one which can be used for issuing summons to give oral evidence or produce documents during enquiry or trial. Though Section 91 of the Code of Criminal Procedure is not mentioned in the form, that can be used for issuing summons to a witness to produce documents under that Section also. But care should be taken to strike of the words which are not applicable.
25. There is no vital difference between the forms of summons given in the old Criminal Rules of Practice and present Criminal Rules of Practice. But a perusal of Ext.P4 shows that there are many mistakes in it. The heading of the Ext.P4 is printed as Form No. 92. In the present Criminal Rules of Practice there are only 61 Judicial Forms prescribed. So, that form is also to be changed. A comparison of the Form in the Code of Criminal Procedure and the Criminal Rules of Practice with Ext.P-4 summons and Ext.P-7 summons shows that the forms now printed and supplied to the Courts are not in accordance with the forms contained in the Code of Criminal Procedure or Criminal Rules of Practice. Immediate steps are to be taken to withdraw the forms now being used and supply the correct forms to the Courts.
26. Ext.P-4 summons issued to the petitioner in this case shows that though the original order was to issue summons to the petitioner to give oral evidence and issue letter of request to the office of the Speaker to produce documents, the summons issued under the hand and seal of the Court shows that the petitioner was called upon to produce documents alone. That is a patent error or illegality. As I have already stated, the prayer in the application filed by the second respondent was to issue summons to the petitioner to give oral evidence alone. The learned Magistrate issued summons to the Finance Minister to produce a document which was sent by Sri. Ahammed Patel, General Secretary of All India Congress Committee to the Office of the Chief Minister on 20.7.2003 and 21.7.2003 and which was handed over to the Speaker. How the Finance Minister can produce a document which the learned Magistrate himself was aware that it was in the possession of the House was not considered by the learned Magistrate. Actually the petitioner was asked to do an act which is impossible of performance. A perusal of Ext.R-2(b) shows that the Magistrate was acting mechanically without any application of mind. Exts.P-4 and P-6 summons issued were without jurisdiction and beyond the powers of the Magistrate. It is a patent error which does not require lengthy and complicated arguments or long-drawn process of reasoning and hence it is amenable to certiorari jurisdiction as held by the Apex Court in Ranjeet Singh 's case (supra). So, Ext.P-6 order passed by the learned Magistrate and Exts.P-4 and P-7 summons are liable to be quashed.
27. A perusal of the records of Crime No. 302 of 2003 of C.B.C.I.D., Thiruvananthapuram shows that the Investigating Officer in that case went to Delhi and seized the Fax Message from the office of the A.I.C.C., New Delhi after preparing an inventory and produced the same before the very same Court. If the real intention of the 2nd respondent is to bring that document before Court alone, he could have very well applied for a certified photocopy of the same and produced in this proceedings.
28. The learned Advocate General appearing for the State has argued that the learned Magistrate acted in excess of the jurisdiction conferred on him by vacating the stay passed in this case under Section 210 of the Code of Criminal Procedure and that matter also is to be considered in this Writ Petition. That prayer is opposed by the counsel for respondents 2 and 3. It is argued that this Writ Petition is filed by a witness and the only question that can be considered in this proceedings is whether the summons issued to the petitioner was legal and proper. There is much force in the argument. The point raised by the learned Advocate General is far beyond the scope of this Writ Petition. So I am not considering that point in this Writ Petition. It is open to the prosecution to challenge the order passed on 10.9.2004 vacating the stay in appropriate proceedings.
29. There is yet another larger question. In both complaints the complainants had admitted that they had no direct knowledge about the allegations levelled in the complaints. The 2nd respondent relied on the news item appeared in two News Papers. In the complaint filed by the 3rd respondent, the only document produced was the copy of the letter written by the Principal Secretary to the Court in this case. The sworn statements of respondents 2 and 3 in the two cases also shows that their information about the incident is based on the paper reports only. Is it sufficient to set the criminal law into motion? It is true that any person can set criminal law into motion. But, can that principle be stretched the extent of filing criminal complaints based on news paper reports only? A perusal of the case investigated by the police shows that it is investigated by a Superintendent of Police. He had to go to Delhi on a number of occasions in connection with investigation of that case. At least four witnesses in both cases are from New Delhi. The State will have to meet their expenses by spending a huge amount. In this connection it is also pertinent to note that in this case the 2nd respondent himself had subsequently filed an affidavit stating that Sri. Ahammed Patel had admitted that he had sent the disputed Fax Message. The very allegation is that the accused in this case fabricated that message. What exactly will be the result of this inquiry is very clear. A large number of under trial prisoners are languishing in jails. Instead of disposing such cases, should the Criminal Courts allow itself to be used as pawns in the political game of chess? But, I do not think, in this proceedings those matters can be considered. So, I leave those issues also to be decided in appropriate proceedings. I make it clear that this order will not be a bar for the State to challenge the order vacating the stay or all further proceedings in both complaints in appropriate proceedings.
30. The records show that the learned Magistrate had passed orders allowing Ext.R-2(b) petition filed by the second respondent. Since the list of witness produced along with the petition is not in conformity with the relief sought for in the petition, that witness list and the order passed by the learned Magistrate in Ext.R-2(b) petition are also liable to be quashed. But, I make it clear that this order will not be a bar for the second respondent to file proper petition for the very same reliefs with a proper list of witnesses. In case such a petition is filed and the same shall be disposed of by the learned Magistrate in accordance with Jaw.
In the result, the Writ Petition is disposed of in the following manner: The orders passed by the learned Magistrate in Ext.R-2(b) application allowing the same and also Ext.P-6 order passed on that day and Exts.P-4 and P-7 summons issued to the petitioner are hereby quashed. It is made clear that this judgment will not be a bar for the second respondent to file a proper application and witness schedule and in case such an application is filed, it is open to the learned Magistrate to hear and pass appropriate order on the same in accordance with law. It is also made clear that if the State is aggrieved by the order passed by the learned Magistrate vacating the stay passed under Section 210 of the Code of Criminal Procedure or all further proceedings in both complaints, this judgment will not be a bar for the State to challenge the same in appropriate proceedings.
A copy of this judgment will be placed before the Registrar, High Court to take immediate action to withdraw the present forms used for issuing summons to the witness to give evidence and also the form of summons to produce document and substitute the same with Form No. 33 prescribed under the Code of Criminal Procedure and Form No. 28 prescribed under the Criminal Rules of Practice at the earliest.