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2025 DIGILAW 1728 (KER)

Murukan M. S/o Muthayya Konar v. State of Kerala

2025-06-27

A.BADHARUDEEN

body2025
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS ’ hereinafter) by the petitioner, who is the sole accused in C.C.No.4/2019 on the files of the Enquiry Commissioner and Special Judge, Kozhikode, challenging Annexure A3 common order in C.M.P.Nos.401/2025 and402/2025, dated 19.6.2025. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala. 3. This is a case where the prosecution alleges commission of offences punishable under Sections 7 , 13 (1)(d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘the PC Act, 1988’ hereinafter) by the accused/petitioner herein. The allegation is that, at about 16.10 hrs. on 29.7.2016, the accused, who had been working as Village Assistant at Thennala Village Office, Malappuram, demanded illegal gratification of Rs.6,000/- from one Sri.Anas Tharammal, who was examined in this case as PW11 and thereafter, accepted the same during trap proceedings and accordingly, the accused was red-handedly arrested. As of now, in this case, charge framed on 10.09.2024 and trial started on 24.09.2024. On 07.05.2025, the complainant got examined as PW11 after securing his presence from abroad. Now, prosecution evidence completed and the accused was questioned under Section 313 (1)(b) of the Code of Criminal Procedure and the case posted for defence evidence on 16.06.2025. 4. While so, the petitioner/accused filed two petitions under Section 266 of the BNSS . The averments in the first petition is that, after scheduling the case for trial, as on 03.05.2025, the wife of PW11 had telephonic discussion with the accused and during the discussion, she stated that her husband committed wrong to him and she had repentance on the same. According to the petitioner, the telephone discussion in between the petitioner and the wife of PW11 is from his mobile phone No.9526531245 and the wife of PW11 talked to him from her mobile phone No.8086578714. According to the petitioner, he had produced CDR pertaining to Vodafone Idea company in this regard and also produced the telephone discussion recorded in pendrive before the court. Therefore, in order to prove the said fact, the wife of PW11 is to be summoned. According to the petitioner, he had produced CDR pertaining to Vodafone Idea company in this regard and also produced the telephone discussion recorded in pendrive before the court. Therefore, in order to prove the said fact, the wife of PW11 is to be summoned. The prayer in the second petition is also in connection with the first petition, whereby it was requested to produce details regarding the telephone calls received in the petitioner's mobile phone No.9526531245 on 03.05.2025 to prove that there was telephone call in between the petitioner and the wife of PW11 on 03.05.2025. The learned counsel for the petitioner argued the above points to revisit the common order. 5. Prosecution side zealously opposed the said petitions on the submission that the prayers in the petitions are devoid of any merits and the intention behind these petitions was to prolong trial. It was contended that the repentance, at the instance of the wife of PW11, if found to be true, the same, in fact, unbelievable and unreliable as against the evidence of PW11. Therefore, the same has no evidentiary value to decide the case. That apart, the pendrive alleged to have contained the discussion in between the petitioner and the wife of the PW11 also could not be accepted in evidence, since in the petitions, nothing stated as to how the telephone discussion was copied and recorded in the pendrive. 6. Addressing the prayers in the petitions in tune with the objections filed by the prosecution, the learned Special Judge dismissed both the petitions, relying on a decision of the Apex Court in Central Bureau of Investigation v. Tuncay Alankus, 2013 KHC 3582 and held that when summons sought to be issued to examine a witness, the defence must ordinarily satisfy the Court as to how the examination of a witness would aid the case and a witness could not be summoned merely because the defence desires the same. It was found by the Special Court that the accused miserably failed to explain how the examination of the wife of PW11 would assist the defence case. Further, he also failed to demonstrate the admissibility and reliability of her telephone call. 7. On perusal of the order of the Special Court, in paragraph No.12, the learned Special Judge held as under: “12. Further, he also failed to demonstrate the admissibility and reliability of her telephone call. 7. On perusal of the order of the Special Court, in paragraph No.12, the learned Special Judge held as under: “12. Furthermore, the accused has stated in the petition that he received a phone call from the wife of the complainant using Mobile No.8086578714 on 03- 05-2025. However, the photocopy of the CDR dated 03- 05-2025 shows that there was no outgoing call from Mobile No.8086578714 to Mobile No.9526531245 on that date. On the contrary, it only shows an incoming call from Mobile No.9526531245 to Mobile No.8086578714. The accused has not alleged in the petition that the wife of the complainant contacted him on any date other than 03-05-2025. It is also pertinent to note that his specific prayer in the petition is limited to obtaining a certified copy of the CDR dated 03-05- 2025. Therefore, the claim that he received a call from the wife of PW11/complainant on 03-05-2025 is not supported by the CDR and cannot be accepted.” 8. Thus, from the above discussion, it is clear that even though the petitioner produced a pendrive on the allegation that the same contained discussion in between him and the wife of PW11, the mode of recording and the mode of storing the same in the pendrive not at all disclosed. Most importantly, the certificate contemplated under Section 65B of the Indian Evidence Act, 1872 or under Sections 61 and 63 of the Bharatiya Sakshya Adhiniyam, 2023 , also not produced. That apart, as rightly found by the Special Court, the CDR dated 03.05.2025 produced by the petitioner, there was no outgoing call from mobile No.8086578714 to the mobile number of the petitioner. Thus, the allegation of the petitioner that the wife of PW11 called the petitioner from her mobile No.8086578714, is found prima facie unbelievable and thereby, the petitions were dismissed. 9. While addressing the points of consideration in tune with the mandate of Section 266 or under Section 256 of the BNSS , when issuing summons to defence witnesses, the court primarily need to ensure that the application is not intended for vexation or delay the proceedings and that the evidence of the witness/witnesses sought to be summoned, is relevant to the case. Further, the court must be satisfied that the testimony of the witness/witnesses is relevant to the defence of the accused and the same is necessary for the just decision of the case. If the above points are found in the negative, the court can refuse to issue summons to defence witnesses if the court believes that the application is solely for vexation or delay to defeat the ends of justice and the evidence sought to be brought in, is not having any relevance in deciding the case. 10. In the instant case, going by the reasons stated by the learned Special Judge for dismissing the applications, primarily it has been observed that the trap was on 29.07.2016. Thereafter, PW11 was examined on 07.05.2025 after his appearance from abroad. Now, the petitioner's contention is that, in the meanwhile, the wife of PW11 had telephoned him and she expressed her repentance in this matter as on 03.05.2025. But, on perusal of the call records produced as that of the petitioner, no outgoing calls, at the instance of the wife of PW11, as alleged, could be gathered, as found by the Special Court. If at all, the wife of PW11 stated something regarding the occurrence as against the prosecution case, after 8 years of occurrence, the same has no relevance in deciding the case and to establish the guilt of the accused, where the accused was red-handedly arrested during trap when he demanded and accepted bribe. Therefore, both the petitions found to be unwanted and the intention is nothing but to protract the trial and to avoid pronouncement of judgment. Therefore, the trial court rightly dismissed both the petitions and the common order thereof does not require any interference.