G.RAMESAN v. STATE OF KERALA

V. RAMKUMAR, J.= = = = = = = = = = = = = Crl.R.P.No.2073 of 2008= = = = = = = = = = = = = = Dated this the 30th day of June, 2008ORDERPetitioner, who was the father in law of one Premshankerwho is the 1st accused in C.C.No.513 of 1995 on the file of theChief Judicial Magistrate, Ernakulam for offences punishableunder Sections 323, 342, 357, 427 & 465 read with 120B IPC,challenges Annexure D order dismissing his petition filed underSection 284 Cr.P.C requesting to dispense with his attendancebefore the court and to examine him on commission.2. I heard the learned counsel for the petitioner as well asthe learned Standing Counsel for the CBI.3. The petitioner is Charge Witness No.60 in the abovecase. According to the prosecution, it was by travelling in theContessa car, (of which the petitioner's son is the registeredowner) which was made available to the 1st accused by thepetitioner herein, that the aforementioned offences werecommitted by the 1st accused and others in prosecution of thecriminal conspiracy hatched by them. Since the prosecution Crl.R.P.No.2073 of 20082was desirous of examining the petitioner, summons was issued tothe petitioner. Thereupon the petitioner filed Annexure Capplication before the Chief Judicial Magistrate, to the effect thathe was laid up and could not travel from Thiruvananthapuram toErnakulam due to his heart disease and old age. He alsoproduced a medical certificate issued by Dr.Bhahuleyan ofAnanthapuri Hospitals and Research Institute, Thiruvananthapuram. He therefore prayed for dispensing withhis attendance and for issuing a commission under Section 284Cr.P.C for his examination. The said petition was dismissed bythe Chief Judicial Magistrate for the reason that the petitionshould have been routed through the Special Prosecutor incharge of the case. The said order is assailed in this petition. 4. It is not necessary for a prosecution witness to route hisapplication for dispensing with his attendance, through theprosecutor in charge of the case. The witness can engage aprivate lawyer and voice his grievance before the court. Thequestion as to whether the petitioner is a heart patient andunable to travel all the way from Thiruvananthapuram to Crl.R.P.No.2073 of 20083Ernakulam is a matter which has to be considered by the trialcourt and appropriate order passed either directing him toappear before the court or dispensing with his attendance andappointing commission under Section 234 Cr.P.C for hisexamination. The Prosecutor in charge of the case alone has adiscretion to decide as to which all witnesses have to beexamined and which all witnesses has to be given up. If theprosecutor is insisting on the examination of a prosecutionwitness shown as a charge witness, the court will have to securehis presence either on summons or on warrant unless the court, having regard to the physical condition and other factors of thewitness, decides to examine him on commission by entrustingthe said task with a Judicial Magistrate. Since the court belowhas not entered any finding either way on the merits of theapplication, the impugned order is set aside and the matter isremitted back to the court below for deciding whether thepetitioner should be examined in person as a witness by theChief Judicial Magistrate or whether his examination should beconducted under Section 284 Cr.P.C, through a commission. Crl.R.P.No.2073 of 200845. Warrants, if any passed by the Chief Judicial Magistratepursuant to the impugned order shall stand recalled. This Crl.R.P. is disposed of as above. Dated this the 30th day of June, 2008.V. RAMKUMAR, JUDGE sj