IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1702 of 2008()
1. LLIYAN HAMZA, S/O. LLIYAN ABDULLA,
... Petitioner
2. K.SAIFUDEEN, S/O. KUNJU MOHAMMED,
3. MOHAMMED BASHEER MANGALASSERY,
4. ABDUL SALAM PALAPETTA,
Vs
1. INSPECTOR GENERAL OF POLICE,
... Respondent
2. STATE OF KERALA - REPRESENTED BY
3. V.V.HAMZA, S/O. KUNJU MOHAMMED,
4. MOHAMMED KUTTY KONTHEDAN,
5. KUNHI MARAKKAR, AGED 37 YEARS,
6. ABDUL GAFOOR, S/O. MOHAMMED MULLAH,
7. USMAN MUSALIYAR, S/O. MOIDEEN HAJI,
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :06/05/2008
O R D E R
K.P.BALACHANDRAN, J.
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Crl.M.C.Nos.1702 of 2008,
1708 of 2008 & 1703 of 2008
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Dated, this the 6th day of May, 2008
COMMON ORDER
In Crl.M.C.No.1702/2008 filed by accused Nos.2 to 4 and
8 in S.C.No.309/2003 and in Crl.M.C.No.1708/2008 filed by
accusedNos.1, 5 to 7 and 9, the grievance of the petitioners is that
Annexure-I order (in Crl.M.C.No.1702/2008) was passed by the Special
Judge on the application of the accused to have speedy trial of the
case. Now the trial of the case is being expedited. In Annexure-I order
the trial court directed the prosecution to take steps for producing the
remaining witnesses expeditiously and that trial shall proceed
uninterruptedly and without delay. But, on the very next day of passing
of the said order Annexure-II petition (in Crl.M.C.No.1702/2008) was
filed by the Special Prosecutor praying for steps being taken under
Sections 82 and 83 of Cr.P.C. to attach the properties of CWs 18, 21,
25, 31 and 34 and to compel their presence in court for tendering
evidence in the case and that the procedure sought to be so got
initiated is with a view to have the trial of the case prolonged. But the
Special Judge has allowed the application and ordered process be
issued under Sections 82 and 83 against CWs 18, 21, 25, 31 and 34
to compel their presence in court for tendering evidence, whereas
those witnesses are all employed in gulf countries and they will not be
Cr.M.C. 1702, 1708, 1703/2008 -2-
able to appear on the date specified in the notification and therefore, it
is only an attempt on the part of the prosecuting agency to have the
trial of the case protracted and therefore, Annexure-IV order (in
Crl.M.C.1702/2008) which according to the petitioners is illegal, be
quashed.
2. In Crl.M.C.1703/2008 filed by CWs 18, 25 and 31,
they seek for an order quashing Annexure-II order which is the same
as Annexure-IV order in Crl.M.C.No.1702/2008 as also Annexure-III
proclamation issued under Sections 82, 87 and 90 requiring their
attendance.
3. It is true that the request of the petitioners in
Crl.M.C.1702/2008 and 1708/2008 to have the trial of the case
expedited deserves to be considered favourably. All the same, without
examining such of the witnesses who are employed abroad namely
CWs 18, 21, 25, 31 and 34 of whom CWs 18, 25 and 31 have
preferred Crl.M.C.1703/2008 the trial of the case cannot be closed
giving an opportunity for the accused to exploit the situation rendering
the prosecuting agency unable to adduce evidence.
4. I have ascertained from the counsel for the petitioners
in Crl.M.C.1703/2008 as to when CWs 18, 25 and 31 will be able to
appear to tender evidence before the Special Judge (SPE-CBI),
Ernakulam and the learned Senior counsel Sri.V.N.Achutha Kurup
Cr.M.C. 1702, 1708, 1703/2008 -3-
submits that they will come over in the 2nd week of June, 2008.
Accepting the undertaking so given by the senior counsel, I direct the
court below to schedule the trial of the case in such a manner as to
have the examination of CWs 18, 25 and 31 conducted during the 2nd
week of June, 2008. However, in relation to CWs 21 and 34, the court
below may proceed, if so desired by the prosecuting agency, to have
their presence obtained even prior to June, 2008. It is submitted by
the senior counsel for the petitioners in Crl.M.C.1703/2008
Sri.V.N.Achutha Kurup that, CBI-Investigating Agency has taken steps
to impound the passport of CWs 18, 25 and 31 and that such a course
would disable the petitioners in Crl.M.C.1703/2008 from coming over to
their own country. Proceedings, if any, taken by the CBI to impound
the passport of CWs 18, 25 and 31 shall be withdrawn forthwith.
5. In view of the above directions, the warrant, if any,
issued against CWs 18, 25 and 31 who are petitioners in
Crl.M.C.1703/2008 shall be withdrawn forthwith by the court below.
With the above directions, the Criminal Miscellaneous
Cases are disposed of.
(K.P.BALACHANDRAN)
JUDGE.
MS