IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1510 of 2006()
1. SABU M.JACOB, S/O. M.C. JACOB,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/08/2009
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.1510 of 2006
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ORDER
First accused in C.C.No.333/2002 on the file of
Judicial First Class Magistrate’s Court, Kolenchery
filed this petition under Section 482 of Code of
Criminal Procedure to quash Annexure-D order passed by
the Magistrate on 13.2.2006, holding that as cognizance
was taken against the petitioner, filing of a further
report, after re-investigation under Section 173(8) of
Code of Criminal Procedure, will not affect the
cognizance already taken and therefore, proceedings as
against the petitioner is to be continued.
2. Based on the final report submitted after
investigation under Section 173(2) of Code of Criminal
Procedure dated 23.1.2002, Judicial First Class
Magistrate, Kolenchery took cognizance of the offences
under Sections 143, 147, 148, 452, 354 and 427 read
with Section 149 of Indian Penal Code as against seven
accused. Subsequently, in O.P.No.3567/2002, filed by
the petitioner, under Anenxure-A judgment, this Court
CRMC 1510/06 2
directed that investigation of Crime Nos.248/2000,
249/2000, 250/2000, 115/2001, 116/2001, 117/2001,
118/2001 and 119/2001 are to be conducted by the
Superintendent of Police, Crime Branch, Ernakulam.
After completing the further investigation so ordered,
a final report was submitted as provided under Section
173(8) of Code of Criminal Procedure stating that out
of the original accused, accused 1, 5 and 6 are not
involved in the case and including the remaining
original accused only eleven accused are involved. When
petitioner contended that he cannot be prosecuted
further, in view of the final report, under Annexure-D
order dated 13.3.2006, learned Magistrate, following
the decision of the Apex Court in Adalat Prasad v.
Rooplal Jindal (2004 (3) KLT 382), held that once
cognizance is taken, case as against the petitioner is
to be proceeded further. This petition is filed to
quash the said order.
3. Learned counsel appearing for the petitioner
and learned Public Prosecutor were heard.
4. The facts are undisputed. Though, as per the
original final report filed under Section 173(2) of
CRMC 1510/06 3
Code of Criminal Procedure cognizance was taken against
seven accused including the petitioner, dissatisfied
with the investigation, this Court directed a further
investigation to be conducted by the Superintendent of
Police, Crime Branch, Ernakulam. After the said further
investigation, a final report as provided under Section
173(8), which is to be treated as a final report
submitted under Section 173(2) of Code of Criminal
Procedure, was filed stating that accused 1,5 and 6 are
not involved in the case. Therefore, learned
Magistrate, even if, proceeded with trial of those
accused, they can only be acquitted. In such
circumstances, it is not, in the interest of justice,
to continue the proceedings as against the petitioner
and accused 5 and 6. Though learned Magistrate relied
on the decision in Adalat Prasad’s case (supra), that
was a case where, summons issued under Section 204 of
Code of Criminal Procedure by the Magistrate, after
conducting an inquiry under Section 202 of Code of
Criminal Procedure, was later withdrawn, at the
instance of the accused. Honourable Supreme Court held
that Magistrate has no power to withdraw the summons
CRMC 1510/06 4
issued under section 204 of Code of Criminal Procedure
and the remedy is to invoke the provisions of Section
482 of Code of Criminal Procedure. When, based on the
unsatisfactory investigation, a further investigation
was ordered by this Court and on such further
investigation, it is found that petitioner is not
involved in the case, continuation of the proceedings
as against the petitioner is only an abuse of process
of the court. In such circumstances, further
proceedings in C.C.No.333/2002 as against the
petitioner and accused 5 and 6 would only be an abuse
of process of the court, as, even if they are tried,
there is no chance for convicting them. To secure
justice, case as against accused 1, 5 and 6 in C.C.
No.333/2002 is quashed.
Petition is disposed.
6th August, 2009 (M.Sasidharan Nambiar, Judge)
tkv