IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 Crl.MC.No. 2113 of 2008() ------------------------- CC.797/2008 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER: ACCUSED ------------------------- BINEESH.P.O., S/O.LATE M.C.GOVINDAN, PUTHENKALAYIL HOUSE, BRAHMAMANGALAM, KOTTAYAM DISTRICT. BY ADV. SRI.C.R.SYAMKUMAR SRI.K.J.ABRAHAM SRI.JOSE KURIEN SRI.LAVARAJ M.G. SRI.C.R.VINOD KUMAR RESPONDENTS: COMPLAINANT & STATE -------------------------------------------- 1. THE ASSISTANT SUB INSPECTOR OF POLICE, UDAYAMPEROOR POLICE STATION, UDAYAMPEROOR. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 2113 OF 2008 ----------------------------------------------- Dated this the 10th day of June, 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable inter alia under Section 185 of the Motor Vehicles Act. The petitioner has admittedly not been subjected to any breath analyser test. The petitioner has not been subjected to any blood test also. In short, the percentage of alcohol in the blood of the petitioner at the time of the commission of the alleged offence has not been ascertained at all. The certificate of drunkenness only shows that there was smell of alcohol in breath and the petitioner was not under its influence. 2. The learned counsel for the petitioner submits that in the light of the decision in Shibu v. State of Kerala [2006(4) KLT 747], the prosecution of the petitioner under Section 185 of the Motor Vehicles Act is not maintainable at all. The same deserves to be quashed invoking the powers under Section 482 Cr.P.C, it is submitted. 3. The petitioner faces allegations under Section 279 IPC and Section 185 of the Motor Vehicles Act. The learned counsel Crl.M.C. No. 2113 OF 2008 2 for the petitioner was asked why the powers under Section 482 Cr.P.C should be invoked now. Even if such powers are invoked, that will not terminate the proceedings finally. Learned counsel for the petitioner then submitted that the petitioner wants to plead guilty to the charge under Section 279 IPC and put an end to the trauma of the prosecution against him. An affidavit has been filed by the petitioner to prove this fact. 4. I am satisfied that in the light of the decision in Shibu's case(supra), the prosecution under Section 185 of the Motor Vehicles Act is not justified and is not sustainable. 5. This Crl.M.C is accordingly allowed. The prosecution against the petitioner in CC No.797/2008, in so far as it relates to the charge under Section 185 of the Motor Vehicles Act, is hereby quashed. R. BASANT, JUDGE ttb Crl.M.C. No. 2113 OF 2008 3 Crl.M.C. No. 2113 OF 2008 4 Crl.M.C. No. 2113 OF 2008 5