Allowed

T.M.Abdul Salam, v. B.Mohammed Jamal

Kerala HC23 Sept 2021WA/1205/2021

Case brief

AI extract

What is this about?

This writ appeal challenged a direction allowing an accused to produce documents before a Special Judge at the cognizance stage. The Court held that the accused's presence is not required for cognizance and permitted document production at that stage violates the Code of Criminal Procedure. The relevant order permitting production was set aside.

What did the court decide?

Order permitting the accused to produce documents at the time of taking cognizance was set aside; the rest of the impugned order remains in tact.

T.M.Abdul Salam, Vs B.Mohammed Jamal — Criminal Trial and Appeal | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 23^RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943

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WA NO. 1205 OF 2021

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ORDER DATED 07.07.2021 IN WP(C) 15620/2020 OF HIGH COURT OF KERALA

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APPELLANT/4TH RESPONDENT:

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T.M.ABDUL SALAM,

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AGED 54 YEARS S/O. MUHAMMED, THAIKKODATH HOUSE, KAKKANAD, KOCHI 682 021.

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BY ADVS. T.U.ZIYAD RAMEENA.P.K. K.B.ARUNKUMAR

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RESPONDENT/S:

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1 B.MOHAMMED JAMAL, AGED 55 YEARS

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S/O.LATE B.M.HAMEED, CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD, V.I.P.ROAD, KALOOR, KOCHI- 682 017.

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2 THE DIRECTOR GENERAL OF POLICE,

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VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM - 695 001.

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3 THE SUPERINTENDENT OF POLICE,

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VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM UNIT, KALOOR, KOCHI - 682 017.

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4 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM UNIT, KALOOR, KOCHI- 682 017.

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R2 TO R4 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER R1 BY SMT. ARYA RAGHUNATH REPRESENTING SRI BABU KARUKAPADATH

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A No. 1205/2021

: 2 :

'C.R'

Dated this the 23^rd day of September, 2021

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JUDGMENT

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S. MANIKUMAR,CJ.

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Challenging the order dated 7.7.2021 in W.P.(C) No. 15620 of

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2020, instant writ appeal is filed.

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Considering the materials on record, on 22^nd September, 2021, we passed the following order:

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“When the 1^st respondent / accused sought for early disposal of a complaint, writ court by the order dated 07.07.2021 in W. P. (C) No. 15620 of 2020, has granted extension of three months from 21.06.2021, to dispose of the matter.

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While doing so, writ court permitted the accused / 1^st respondent, to produce few documents before the learned Enquiry Commissioner and Special Judge, Muvattupuzha.

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Being aggrieved by the direction, permitting production of certain documents, instant writ appeal is filed on the grounds inter alia that the direction to permit production of documents by the accused, even before the court taking cognizance, is contrary to the provisions of the Code of Criminal Procedure, 1973.

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W.A No. 1205/2021

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: 3 :

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On this day, when the matter came up for hearing, Ms. Arya Reghunath, learned counsel for the 1^st respondent, submitted that the matter has been heard and posted today, for orders.

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However, posed with a question as to whether the respondent had produced any document before the learned Enquiry Commissioner and Special Judge, Mr. T. U. Ziyad, learned counsel for the appellant, submitted that the writ petitioner tendered some documents, but the same was objected to by the appellant.

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At the time of hearing, the learned Enquiry Commissioner and Special Judge did not accept the same, however, he is not sure as to whether the documents would be considered at the time of passing final orders, as to taking of cognizance of the private complaint.

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Learned counsel for the appellant further submitted that pendency of the instant writ appeal was also brought to the notice of the learned Enquiry Commissioner and Special Judge.

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As the matter is posted for orders today, we are not expressing any opinion on the merits of this case, however, hope that the learned Enquiry Commissioner and Special Judge, considers the statutory provisions as regards how cognizance of a complaint has to be taken under the Code of Criminal Procedure, 1973.

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W.A No. 1205/2021

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: 4 :

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Suffice to observe that unless and until cognizance is taken under the Code of Criminal Procedure, 1973, presence of an accused is not required to adduce any evidence. Appellant is permitted to bring it to the notice of the learned Enquiry Commissioner and Special Judge.

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Registry is directed to issue copy, today itself.

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Post on 23.09.2021.”

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On this day, when the matter came up for hearing, Mr. K.B. Arun Kumar, learned counsel for the appellant, submitted that taking note of the order dated 22.09.2021, a petition was filed before the learned Enquiry Commissioner and Special Judge, Thrissur.

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Ms. Arya Raghunath, learned counsel representing the learned counsel for the writ petitioner/first respondent, submitted that after perusing the contents of the petition filed by the respondent, the learned Enquiry Commissioner and Special Judge, directed to verify as to whether, there is any stay of proceedings in CMP Nos. 536 and 539 of 2016, and posted the matter for orders today.

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Even though, as per order dated 22.09.2021, we observed that presence of accused is not required, at the time of taking cognizance of a complaint, to consider the correctness and legality of the impugned order, we require to elaborate on the process involved,

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W.A No. 1205/2021

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: 5 :

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in taking cognizance, and as to whether, the presence of the accused is required, at that stage.

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The order impugned in the instant writ appeal is extracted hereunder:

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“The learned Enquiry Commissioner and Special Judge by his communication dated 18.06.2021 has informed that consequent to the pandemic, the direction of this Court, regarding the disposal of CMP No. 536/16 and CMP No. 539/16 could not be complied with. The learned Special Judge has sought for extended time of three months from 21.06.2021, to dispose of the matter. Permitted.

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The learned counsel for the petitioner sought permission to produce few documents before the learned Special Judge. Permitted. The petitioner shall produce the documents accordingly.”

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Perusal of the order extracted above, shows that while extending the time of three months from 21.06.2021 for the disposal of CMP Nos. 536 and 539 of 2016, writ court has permitted the writ petitioner/first respondent, to produce the documents.

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Even though Ms. Arya Raghunath, learned counsel appearing for the writ petitioner/first respondent, submitted that production of documents on merits would, in no way, preclude the learned Enquiry Commissioner and Special Judge from taking cognizance, and

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W.A No. 1205/2021

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: 6 :

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therefore, there is no error in the impugned order, we are not inclined to accept the said contention, in view of the statutory provisions contained in the Code of Criminal Procedure, 1973, dealing with taking cognizance of a complaint and the process involved.

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Chapter XIV of Code of Criminal Procedure, 1973 deals with 'conditions requisite for initiation of proceedings'. Section 190 speaks about 'cognizance of offences by Magistrates' and it reads thus:

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“ 190. Cognizance of offences by Magistrates .

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(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-

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(a) upon receiving a complaint of facts which constitute such offence;

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(b) upon a police report of such facts;

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(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

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(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.”

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Chapter XV of the Code of Criminal Procedure, 1973 deals

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with complaints to the Magistrates. Section 200 of Chapter XV speaks

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about the examination of the complainant. In that context, it is profitable to extract Sections 200 to 203 and they read thus:

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W.A No. 1205/2021

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: 7 :

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“200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

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Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

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(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

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(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

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Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them.”

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“201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, -

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(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

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(b) if the complaint is not in writing, direct the complainant to the proper Court.”

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“202. Postponement of issue of process .- (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case

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W.A No. 1205/2021

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: 8 :

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where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

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Provided that no such direction for investigation shall be made,-

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(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

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(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

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(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

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Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

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(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.”

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“ 203. Dismissal of complaint .- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no

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W.A No. 1205/2021

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: 9 :

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sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.”

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Chapter XVI of the Code of Criminal Procedure, 1973 deals with commencement of proceedings before the Magistrates. Section 204 of Chapter XVI speaks about the issue of process and Section 205 speaks about dispensation of personal attendance of the accused by the Magistrate. Sections 204 and 205 read thus:

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“ 204. Issue of process .- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

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(a) a summons case, he shall issue his summons for the attendance of the accused, or

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(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

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(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.

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(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.

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(4) When by any law for the time being in force any

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W.A No. 1205/2021

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: 10 :

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process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

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(5) Nothing in this section shall be deemed to affect the provisions of section 87.”

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“205. Magistrate may dispense with personal attendance

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of accused .- (1) Whenever a Magistrate issues a summons, he may, if he sees reason so as to do, dispense wit the personal attendance of the accused and permit him to appear by is pleader.

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(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.”

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In the instant case, CMP Nos. 536 and 539 of 2016 were pending on the file of learned Enquiry Commissioner and Special Judge, Muvattupuzha, for quite some time and since the proceedings were pending, W.P.(C) No. 15620 of 2020 has been filed for a direction to dispose of Exhibits-P5 and P11, viz., CMP Nos. 539 and 536 of 2016 respectively, expeditiously.

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After hearing the parties, by judgment dated 24.03.2021, writ court disposed of the writ petition directing the learned Enquiry Commissioner and Special Judge to take up the above CMPs, hear both sides and pass final orders, within two months from the date of receipt

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W.A No. 1205/2021 : 11 :

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of a copy of the said judgment.

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As the matter could not be disposed of due to pandemic, the learned Enquiry Commissioner and Special Judge, vide communication dated 18.06.2021, has sought for 3 months' time to dispose of CMP Nos. 536 and 539 of 2016.

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While the learned Single Judge, by the impugned order dated 7.7.2021, granted three months' time, has permitted the writ petitioner/first respondent to produce documents before the learned Special Judge.

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To a query as to whether there is any provision in the Code of Criminal Procedure, 1973, permitting the accused in a complaint, to enter into the arena, for taking cognizance by the Magistrate, as provided in the Code, Mr. K. B. Arun Kumar, learned counsel for the appellant, categorically submitted that there is no such provision; but contended that documents are produced to substantiate the harassment made by the complainant.

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In the light of the provisions extracted above, we are of the view that presence of an accused is not required, at the time of consideration of taking cognizance.

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W.A No. 1205/2021

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: 12 :

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Even assuming that the documents are not on the merits of the matter, but produced, only to substantiate the contention of any alleged harassment, the learned Special Judge is not required to permit production of such documents at the time of taking cognizance. Code of Criminal Procedure is law declared, and that the same cannot be violated.

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In that view of the matter, learned Special Judge is directed to act in accordance with the provisions of the Code of Criminal Procedure, 1973, in the matter of taking cognizance of the offence. Portion of the impugned order permitting production of documents is set aside. In all other respects, the impugned order will remain in tact.

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With the above observations and directions, this writ appeal is allowed in part.

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sd/- S. MANIKUMAR, CHIEF JUSTICE

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sd/- SHAJI P. CHALY, JUDGE

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Rvxxxx

T.M.Abdul Salam, v. B.Mohammed Jamal

Case brief

What is this about?

What did the court decide?

T.M.Abdul Salam, v. B.Mohammed Jamal

Case brief

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What did the court decide?

What the court decided

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