Kerala High Court
Murukan M vs State Of Kerala on 27 June, 2025
2025:KER:46722
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 27TH DAY OF JUNE 2025 / 6TH ASHADHA, 1947
CRL.MC NO. 5502 OF 2025
AGAINST THE ORDER DATED 19.06.2025 IN CC NO.4 OF 2019 OF
ENQUIRY COMR.& SPECIAL JUDGE,KZD.
PETITIONER/ACCUSED:
MURUKAN M.
AGED 52 YEARS
S/O.MUTHAYYA KONAR, SKV COMPOUND, BEACH ROAD, KOLLAM, PIN
- 691001
BY ADV.SRI.JELSON J.EDAMPADAM
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY SR.PUBLIC PROSECUTOR SMT.REKHA.S. FOR VACB.
SPL.PUBLIC PROSECUTOR SRI.RAJESH.A. FOR VACB.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
24.06.2025, THE COURT ON 27.06.2025 PASSED THE FOLLOWING:
CRL.M.C.NO.5502 OF 2025 2 2025:KER:46722
CR
ORDER
Dated this the 27th day of June, 2025
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 and
402/2025, 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
CRL.M.C.NO.5502 OF 2025 3 2025:KER:46722
(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
CRL.M.C.NO.5502 OF 2025 4 2025:KER:46722
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. 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
CRL.M.C.NO.5502 OF 2025 5 2025:KER:46722
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
CRL.M.C.NO.5502 OF 2025 6 2025:KER:46722
Judge dismissed both the petitions, relying on a decision of
the Apex Court in Central Bureau of Investigation v.
Tuncay Alankus reported in [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. 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-
CRL.M.C.NO.5502 OF 2025 7 2025:KER:46722
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
CRL.M.C.NO.5502 OF 2025 8 2025:KER:46722
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
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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
CRL.M.C.NO.5502 OF 2025 10 2025:KER:46722
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.
Accordingly, this Criminal Miscellaneous Case is
dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
CRL.M.C.NO.5502 OF 2025 11 2025:KER:46722
PETITIONER'S ANNEXURES
Annexure A1 TRUE COPY OF THE APPLICATION FILED TO
ISSUE SUMMONS TO SMT.SAUDABI IN CC
4/2019 ON THE FILE OF THE ENQUIRY
COMMISSIONER & SPECIAL JUDGE,
KOZHIKODE
Annexure A2 TRUE COPY OF THE APPLICATION, FILED TO
ISSUE SUMMONS TO STORE MANAGER
VODAFONE-IDEA, HIGH SCHOOL JUNCTION,
KOLLAM IN CC 4/2019 ON THE FILE OF THE
ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOZHIKODE
Annexure A3 THE TRUE COPY OF THE ORDER DATED
19.06.2025 IN CMP NO.401/2025 AND CMP
NO.402/2025 IN CC NO.4/2019 ON THE
FILE OF THE ENQUIRY COMMISSIONER &
SPECIAL JUDGE, KOZHIKODE
RESPONDENT'S ANNEXURES : NIL
