Kerala High Court
Renji George Cherian vs State Of Kerala on 16 June, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938
Crl.MC.No. 3089 of 2016 ()
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(AGAINST THE ORDER/JUDGMENT IN ST 2509/2013 of J.M.F.C.,THIRUVALLA
CRIME NO. 1111/2013 OF THIRUVALLA POLICE STATION , PATHANAMTITTA)
PETITIONER(S)/ACCUSED:
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RENJI GEORGE CHERIAN,
34 YEARS, S/O.CHERIAN GEE VARGHESE,
CHIERATHALAKKAL VEETTIL, NEAR GOVT.HOSPITAL,
KACHERIPPADI, THIRUVALLA, PATHANAMTHITTA.
BY ADVS.SRI.P.HARIDAS
SMT.S.SIKKY
SMT.DIVYA K.NAIR
SRI.P.C.SHIJIN
RESPONDENT(S)/STATE & COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2. SUB INSPECTOR OF POLICE
THIRUVALLA, PATHANAMTHITTA-689101.
R BY PUBLIC PROSECUTOR RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-
03-2017, THE COURT ON 06/03/2017 PASSED THE FOLLOWING:
Crl.MC.No. 3089 of 2016 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE-1: CERTIFIED COPY OF THE FIR NO.1111/2013 OF THIRUVALLA
POLICE
STATION.
ANNEXURE-1(A): TRUE COPY OF CERTIFICATE OF DRUNKENNESS DATED
16.06.2013.
ANNEXURE-1(B): TRUE COPY SEIZURE MAHAZAR DATED 16.06.2013.
ANNEXURE-2: CERTIFIED COPY OF THE FINAL REPORT IN CRIME
NO.1111/2013 OF
THIRUVALLA POLICE STATION.
RESPONDENT(S)' EXHIBITS
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/TRUE COPY/ PS TO JUDGE.
SUNIL THOMAS, J.
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Crl.M.C.No. 3089 of 2016
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Dated this the 6th day of March, 2017
O R D E R
The Crl.M.C.is preferred by the sole accused in ST No.2509/2013 of the Judicial First Class Magistrate Court, Thiruvalla in Crime No.1111/2013 of Thiruvalla police station in which the accused stands indicted for offences punishable under section 279 IPC and section 185 of MV Act.
2. The crux of the prosecution allegation is that, on 16/6/2013 at about 2.45 pm, the accused was found driving a car in a rash and negligent manner under the influence of alcohol. He was immediately taken to a doctor and Annexure 1(a) certificate of drunkenness was obtained. Annexure-1 FIR was laid and after investigation, Annexure 2 final report was laid.
3. The above proceedings are challenged by the petitioner herein contending that, he has been falsely implicated due to previous enmity with the concerned police officer for complaining against a relative of that police officer. It was contended that, offence under section 279 IPC and section 185 MV Act will not survive in the present case in the absence of any legally admissible material to establish his guilt. It was asserted by him that, he was not under the influence of alcohol and that he was not driving the Crl.M.C.No.3089/2016 2 vehicle in a rash and negligent manner.
4. Annexure-1(a) is a certificate of Drunkenness dated 16/6/2013 evidencing that the concerned doctor at the Taluk Head quarters hospital had seen the accused at 3.10.p.m. and had recorded that the petitioner herein had consumed alcohol, but was not under the influence of alcohol at the time of examination. Evidently, there was no breath analysis test conducted by the prosecution. This Court in Sagimon alias Prakash v .State of Kerala[2014 (3) KHC 586) had specifically held that, an offence punishable under Section 185 of MV Act can be said to have been committed only if alcohol content exceeding 30 mg per 100 ml of blood is detected by a breath analyser. What is made punishable under the Act is only driving a vehicle or attempting to drive a vehicle with alcohol in blood exceeding 30 mg per 100 detected by a breath analyser. In the absence of any specific evidence to establish this by conducting breath analysis test, it was held that prosecution was unsustainable. This was reiterated by this Court in the judgment in Saji Kumar v.State of Kerala. (Crl.M.C.No.2361/2012).
5. In the light of the above, prosecution under section 185 of MV Act is not sustainable.
6. The next point, that arises for consideration, is whether prosecution under Section 279 IPC is sustainable on the basis of the materials collected by the prosecution. In Crl.M.C.No.3089/2016 3 Crl.M.C.No.2361/2012, this Court had held that what the section 279 IPC contemplates of is not driving or riding a motor vehicle with negligence but something more. To constitute a penal offence thereunder, such driving or riding should be rash and reckless, endangering human life and that should be through a public way. It is not mere negligent driving or riding but to do so with culpable criminal negligence or proceed against the person for that offence.
7. To substantiate the allegation against the accused, the materials relied on by the prosecution are the statements of the two police officers who are stated to be eye witnesses. Their statements are produced as Annexures A2(6) and 2(7). It only vaguely refer to negligent driving. The offence under section 279 IPC is not sustainable for yet another reason. The statements given by both the CPOs are in the printed forms. The filled up details are the personal details of the witnesses. The ingredients of offences are in printed format. This Court in a different prosecution had occasion to consider the ambit of such statements of witnesses recorded under section 161 of the Code of Criminal Procedure, in Crl.M.C.No.6952/2014. It was held by this Court that, in a prosecution under Section 15(c) of the Kerala Abkari Act, the statements of the witnesses recorded under section 161 Cr.P.C.cannot be in a printed form with filled up details. It should be constituted on factual basis which comes voluntarily from the mouth of the informant and the witnesses. The above decision was Crl.M.C.No.3089/2016 4 based on the decision of this Court in Premchand v. State of Kerala [2015 (1) KLT 32].
8. In the light of the above, prosecution under section 279 IPC is also not sustainable. Hence, Crl.M.C.is liable to be allowed.
In the result, Crl.M.C.is allowed. All further proceedings pursuant to Final Report in ST No.2509/2013 of the Judicial First Class Magistrate Court, Thiruvalla, stand quashed.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.
Crl.M.C.No.3089/2016 5