Kerala High Court
Sudhakaran Nair vs The State Of Kerala on 7 July, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937
Crl.MC.No. 5632 of 2014
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C.C.NO.102/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ATTINGAL
CRIME NO. 556/2004 OF KAZHAKOOTTAM POLICE STATION ,
THIRUVANANTHAPURAM DISTRICT
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PETITIONER(S)/ACCUSED :
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SUDHAKARAN NAIR, AGED 62 YEARS,
S/O.THANKAPPAN NAIR, KOTTARA VEEDU,
NEAR LP SCHOOL MELE KADAKKAVOOR, CHIRAYINKEEXHE,
THIRUVANANTHAPURAM.
BY ADVS.SRI.SUMAN CHAKRAVARTHY
SMT.K.R.RIJA
RESPONDENT(S)/COMPLAINANT AND STATE OF KERALA :
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THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 19-02-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Msd.
Crl.MC.No. 5632 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE A: TRUE COPY OF THE FIR IN CRIME NO.556/04.
ANNEXURE B: TRUE COPY OF THE REPORT DATED 07/07/2008.
ANNEXURE C: TRUE COPY OF THE PETITION DATED 25.10.2008.
ANNEXURE D: CERTIFIED COPY OF THE ORDER SHEET.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
B. KEMAL PASHA, J.
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Crl.M.C. No.5632 of 2014
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Dated this the 19th day of February, 2016
O R D E R
~ ~ ~ ~ ~ ~ One Mohanan died in a motor vehicle accident on 18.10.2004 for which a crime was registered as Crime No.556/2004 of Kazhakoottom Police Station against the driver, who was driving the Ambassador car bearing registration No.KBV.5717. The investigation continued. An Advocate named V.Radhakrishnan had preferred Annexure-C petition dated 25.10.2008 before the court below seeking to obtain a report from the investigating officer with regard to the then stage of investigation. On Crl.M.C.5632/2014 : 2 : getting Annexure-C, a report was called for by the court below from the investigating officer. Thereupon, the investigating officer filed Annexure-B report.
2. In Annexure-B report, it was stated that, it was only a road traffic accident and the same had not occurred on account of the callousness or carelessness of the driver, who was driving the car bearing registration No.KBV.5717 and, therefore, the investigating officer had decided to refer the matter. The investigating officer had sought for permission from the Deputy Police Superintendent, Attingal for referring the matter, by submitting the factual report before him.
3. On getting the Annexure-B report, the learned Magistrate passed the following order on 09.02.2009:-
"Heard the Counsel. Perused the CD. I have gone through the statements of witnesses examined by the Police during the investigation. I am satisfied that the conclusion arrived at by the investigating officer is wrong. Crl.M.C.5632/2014 : 3 : Hence in view of the judgment of the Hon'ble Apex Court as SANJAY BANSAL v.
JAWAHARLAL VATS [2008 (2) KLT SN 78 (SC)], cognizance is taken u/s.190(i)(b) Cr.P.C.
u/s.279 and 304A IPC against the accused Sudhakaran Nair, S/o.Thankappan Nair, aged 52 years/2004, Kottara veedu, Near LP School, Mel-Kadakkavoor, Chirayinkeezhu Village (Sudhakaran Nair, S/o.Thankappan Nair, Confidential Assistant to Chief Engineer (P & CP), Civil Wing, KSRTC, Chief Office, East Fort, Thiruvananthapuram as CC.102/2009. Issue Summons to accused.
For return of summons. Call on 28.3.2009."
4. It has to be noted that as on 09.02.2009, any final report under Section 173(2) Cr.P.C., was not filed by the investigating officer. Even then, the court below has chosen to take cognizance of the offences under Sections 279 and 304A IPC under Section 190(1)(b) Cr.P.C. Annexure-D order sheet shows that subsequently, on 12.06.2012, the learned Magistrate had directed the prosecution to produce the copy of the refer charge. It is evident that even on that Crl.M.C.5632/2014 : 4 : date, the refer report was not filed under Section 173(2) Cr.P.C. Again, on 27.12.2012, the learned Magistrate directed the SHO to file the refer report. On 11.01.2013, the final report under Section 173(2) Cr.P.C.was filed.
5. Much discussion is not required to conclude that the learned Magistrate has committed a grave error in taking cognizance of the offences under Section 190(1)(b) Cr.P.C., without going through the final report under Section 173(2) Cr.P.C. On 09.02.2009, no final report was filed by the police under Section 173(2) Cr.P.C. The police report as contemplated under Section 190(1)(b) Cr.P.C. is the police report mentioned in Section 173(2) Cr.P.C. The learned Magistrate ought not to have taken cognizance of the offences with the aid of Section 190(1)(b) Cr.P.C., without a police report. The report called for by the learned Magistrate from the investigating officer regarding the then stage of investigation could not have been treated as a police report within the meaning of Section 173(2) Cr.P.C. or 190(1)(b) Crl.M.C.5632/2014 : 5 : Cr.P.C. Therefore, the taking of cognizance of the said offences by the learned Magistrate on 09.02.2009 was premature, and the same is not legally sustainable.
6. It seems that a private complaint was also filed by the wife of the deceased before the court below as CMP No.512/2012. The court below ought to have proceeded with either the final report filed by the police under Section 173(2) Cr.P.C. or CMP No.512/2012. Presently, the case is pending as CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal. The case as such has born from illegality and, therefore, all further proceedings in the present case are illegal. All further proceedings in CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal, are liable to be quashed.
In the result, this Crl.M.C. is allowed and all further proceedings against the petitioner in CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal, which has arisen from Crime No.556/2004 of Kazhakoottom Crl.M.C.5632/2014 : 6 : Police Station, are quashed. It is made clear that it is open to the victim to have recourse to appropriate proceedings in accordance with law.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/19/02 // True Copy // PA to Judge