IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 594 of 2007()
1. SURESH, S/O. SIVADASAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.S.SANAL KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :23/05/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.594 of 2007
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Dated this the 23rd day of May 2007
O R D E R
The petitioner is the third accused in a prosecution under
the provisions of the Kerala Abkari Act. In the F.I.R registered,
only one accused was shown. In the course of investigation,
accused 2 and 3 were also arrayed as accused. Initially, the
allegation was that accused 1 had committed the offence. In the
course of investigation, it is revealed that another person (A2) by
name Ponnappan and his nephew (A3) by name Suresh
S/o.Sivadasan were also guilty. In the course of the
investigation, report was filed to array additional second and
third accused. They were thus arrayed as accused. After
investigation, final report was filed against three accused
persons (A1 to 3). The third accused, Suresh was described as
“Suresh S/o.Sivadasan, Puthenkandathil house, aged 25, residing
at Kizhakkekkara thekkummuri of Thrikkunnappuzha village.
Accused 2 and 3 were shown as absconding. After taking
cognizance, attempts were made by the learned Magistrate to
get the service effected on the third accused. Summons issued
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to the third accused was returned with the endorsement that
such a person could not be traced. The learned Magistrate
called for explanation of the police officer concerned. At that
stage, it was reported to the learned Magistrate that there was a
mis description in the address of the third accused. It was really
Suresh S/o.Sivadasan of Kochuveettil Puthuval of Mahadevikadu
Muri of Karthikappalli village. The process issued in that
address was served on the petitioner. The petitioner has
thereupon come to this court complaining that he is not the real
third accused and that he has now been arrayed as the third
accused belatedly by the officials without any justification.
2. The counsel points out that initially there were no
allegations raised against the petitioner. The petitioner is not
the person arrayed as third accused. When the court called for
explanation, conveniently the petitioner has been arrayed as the
third accused. This is incorrect. This is unjust. Powers under
Section 482 Cr.P.C may be invoked to prematurely terminate the
proceedings against the petitioner. This, in short, is the plea.
3. The learned Public Prosecutor was directed to take
instructions. The learned Public Prosecutor has got a statement
filed by the Sub Inspector of Police, Thrikkunnappuzha police
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station. It is submitted that there is no incongruity or confusion
about the identity of the third accused. The third accused is
Suresh S/o.Sivadasan, the petitioner herein. It is true that there
is confusion about the address of the third accused. The
confession statement of the first accused revealed that a
neighbour Ponnappan and his nephew Suresh S/o Sivadasan
were accused 2 and 3. What is crucial according to the learned
Public Prosecutor is the fact that the third accused is described
to be the nephew of the second accused. There is no confusion
regarding the identity at all though there is a mis description of
the address of the third accused. A mountain is attempted to be
made out of such a mole hill of inaccuracy of address shown of
the third accused. Identity of the person is without any basic
dispute. The third accused is the nephew of the second accused
who is a neighbour. In these circumstances, notwithstanding the
error in not describing the address of the third accused correctly
in the initial documents and notwithstanding the return of the
summons issued to the third accused in the original incorrect
address with the endorsement that such a person does not exist,
powers under Section 482 Cr.P.C may not be invoked, submits
the learned Public Prosecutor.
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4. I have considered all the circumstances. I must
alertly remind myself that I am called upon to exercise the
extraordinary inherent jurisdiction under Section 482 Cr.P.C.
Such jurisdiction is to be invoked sparingly and in exceptional
cases and that too only in aid of justice. Crucial question is
whether there has been failure of justice. The case diary has
been perused by me. Though the existence of the second and
third accused is not mentioned in the F.I.R and in the seizure
mahazer, it is evident that from the confession of the first
accused, the culpable involvement of the second and third
accused was ascertained and the third accused was described to
be the nephew of the second accused, a neighbour. The
witnesses had identified the petitioner, third accused with
reference to his name and address only. In the name given, he
was shown as Suresh S/o.Sivadasan which is correct. But of
course, there is an incongruity in the address shown. This
incongruity, by itself, according to me, cannot clinch the issue at
this stage. Of course, at the stage of trial, it will be open to the
petitioner to raise his contention that he is not the person who is
shown as the third accused. But, at any rate, that contention will
have to be considered and decided in the course of the trial.
Crl.M.C.No.594/07 5
5. I do not intend to express any opinion on merits about
the culpability of the petitioner, third accused. But I am satisfied
that the mere incongruity in the address shown of the third
accused in the final report and later in the report submitted by
the Sub Inspector of Police after the summons was returned
unserved (to issue process in the correct address) cannot by
itself persuade this court to invoke the powers under Section 482
Cr.P.C.
6. The learned counsel for the petitioner finally submits
that in view of the confusion about the address, the petitioner
has not so far surrendered before the learned Magistrate. The
petitioner apprehends that when he appears, his application for
bail may not be considered by the learned Magistrate on merits,
in accordance with law and expeditiously. It is, in these
circumstances, prayed that appropriate directions may be issued
in the matter by this court.
7. I am of the opinion that no specific directions need be
issued. The petitioner can appear before the learned Magistrate
and apply for bail. I find absolutely no reason to assume that
the learned Magistrate would not consider the application for
bail to be filed by the petitioner on merits, in accordance with
Crl.M.C.No.594/07 6
law and expeditiously. Every court must do the same. No special
or specific directions appear to be necessary. Sufficient general
directions have been issued in Alice George vs.Deputy
Superintendent of Police [2003(1)KLT 339].
8. In the result, this Criminal Miscellaneous Case is
dismissed but with the specific observation that if the petitioner
surrenders before the learned Magistrate and applies for bail,
after giving sufficient prior notice to the Prosecutor in charge of
the case, the learned Magistrate must proceed to pass
appropriate orders on merits, in accordance with law and
expeditiously – on the date of surrender itself. I may hasten to
observe that no observation in this judgment shall be reckoned
as indicative of the culpability of the petitioner or that he is the
person described in the initial documents as the third accused.
Those contentions must be considered in the light of the
materials to be placed before the learned Magistrate in the
course of trial.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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Crl.M.C.No.594/07 8
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF APRIL 2007