IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 888 of 2005()
1. K.BALAKRISHNAN,
... Petitioner
Vs
1. THE JUDICIAL I CLASS MAGISTRATE,
... Respondent
2. THE STATE OF KERALA, REPRESENTED
For Petitioner :SRI.P.T.MOHANKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :30/07/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.888 OF 2005
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Dated 30th July 2009
O R D E R
Petitioner is the first accused in
S.T.2638/2003 on the file of Judicial First Class
Magistrate, Idukki. Proceedings were taken suo motu
by the learned Magistrate under Section 41(d) of
Kerala Police Act for the reason that first accused
the Superintendent of Police (Rural), Kozhikode,
petitioner, the second accused and third accused the
Circle Inspector of Police, Payyoli who was in charge
of the station, when petitioner was on leave,
committed offence under Section 41(d) of Kerala Police
Act, on their failure to execute the non bailable
warrant issued against M.I.Baby, Sub Inspector of
Police, Vatakara, the accused in C.C.17/1999 by the
court. This petition is filed under Section 482 of
Code of Criminal Procedure to quash the case as
against him.
2. First accused filed M.C.5582/2004 for
the same relief. As per order dated 8/9/2004 the case
as against him was quashed. Third accused filed
Crl.M.C.1265/2005. As per order dated 16/5/2005, the
CRMC 888/05 2
case as against him was also quashed. What remains
is only the case as against the petitioner.
3. Petitioner was the Circle Inspector
of police, Vatakara. Case as against him could
only be for non execution of the non bailable
warrant issued by the learned Magistrate in
C.C.17/1999, to produce the accused M.I.Babu and
Sub Inspector of Police on 5/9/2003. Said non
bailable warrant was returned with a report
seeking time stating that Sub Inspector is on
medical leave and is not available at his
residence. Report submitted by the third accused
and the show cause notice issued later establish
that petitioner was on commuted leave with effected
from 6/9/2003 onwards. Order of the learned
Magistrate shows that cognizance was taken against
petitioner for the failure to execute the warrant
on 5/9/2003. As petitioner was on commuted leave
from 6/9/2003 onwards he cannot be prosecuted for
the offence especially when first accused to whom
the warrant to be executed was issued stands
discharged. In such circumstances, when the case as
against accused 1 and 3 are already quashed, on
the facts it cannot be said that petitioner the
CRMC 888/05 3
Circle Inspector of Police till 6/9/2003 committed
the offence. Hence case as against petitioner
only can be quashed.
Petition is allowed. S.T.No.2638/2003 on
the file of Judicial First Class Magistrate,
Idukki is quashed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.