IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH JUNE, 2008 / 22ND JYAISHTA, 1930 Crl.MC.No. 662 of 2004 ---------------------------- (ST.6305/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, ALUVA) .................... PETITIONER/4TH ACCUSED: ---------------------------------- MOHANACHANDRAN, AGED 40, S/O. PARAMESWARAN ELAYATH, AREEKKARA HOUSE, RESIDING AT DAVADATHOM, 7/1235, PRINCE NAGAR, KOLLAMKUDY MUGAL, KAKKANAD, THRIKKAKARA VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENTS: STATE/COMPLAINANT/ACCUSED 1 TO 3: --------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY ITS DIRECTOR OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. S.I. OF POLICE, KALAMASSERRY POLICE STATION. 3. BENNY, S/O. VARKEY, THOPPIL HOUSE, ULLALA VILLAGE, VAIKOM. 4. SHAJI, S/O. ABDULKALAM, SHAJI MANZIL, CHATHANNORE KARA, CHATHANNORE VILLAGE KOLLAM DISTRICT. 5. ANEESH, S/O. SIVARAJAN, MUKAL HOUSE, BHARATIPURAM KARA, EROOR VILLAGE, KOLLAM DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No.662 of 2004 --------------------------------------------- Dated this the 12th day of June, 2008 O R D E R The petitioner, a Civil Surgeon attached to the Government Hospital, Aluva, who faces charge under Section 15(C) of the Abkari act and Section 201 of the Indian Penal Code, seeks an order quashing the charge against him in S.T.No.6305 of 2003 of the Judicial First Class Magistrate Court-II, Aluva. The petitioner herein is the fourth accused in Crime No.344 of 2003 of the Kalamassery Police Station for the offences under Section 15(C) of the Abkari Act and Section 201 of the I.P.C. 2. The allegation against the petitioner is that on 17.9.2003, the second respondent along with two Police Constables conducted a patrol duty at 6.40 p.m. and happened to see accused Nos.1 to 3 consuming alcohol in a public place on the southern side of Palarivattom Pipe Line Road and the second respondent intercepted them and on questioning, the accused Nos.1 to 3 admitted that they were consuming beer. Consequently, they were arrested and subjected for medical examination regarding Crl.M.C.NO. 662 of 2004 :-2-: the drunkenness. It is the further case of the prosecution that the petitioner was in charge at the time when the other accused brought to the hospital for medical examination. After examining the accused, the petitioner herein, who is the fourth accused issued a certificate stating that they did not consume alcohol. Annexures A1 to A3 are the certificates issued by the petitioner. Thereafter, the Police took accused Nos. 1 to 3 to the Co-operative Medical College Hospital, Cochin for medical examination and on examination, the Doctor attached to the above hospital issued certificates stating smell of alcohol. Annexures 4 to 6 are the certificates. It is stated in the Crl.M.C. that even though another Doctor issued Annexures 4 to 6 certificates, that does not mean that petitioner has committed any offence as alleged against him. According to the petitioner, he had issued the certificates only on the basis of his satisfaction on examining accused Nos. 1 to 3 as they were found not consuming alcohol. Therefore, according to the petitioner, the charge against the Crl.M.C.NO. 662 of 2004 :-3-: petitioner is liable to be quashed. 3. I have heard the learned counsel for the petitioner as well as the learned Public Prosecutor. I have perused Annexure A7 charge sheet filed against the accused including the petitioner. Except the statement that the petitioner had conducted the medical examination and issued the certificate stating that they did not consume alcohol with a view to screen evidence and to help accused No.s 1 to 3, there is no allegation against the petitioner that he had done it with any ulterior motive or under the influence of other accused or pursuant to any conspiracy etc. Counsel for the petitioner submits that being a Civil Surgeon, it is his duty to issue certificate in accordance with his observation and finding on the basis of the medical examination conducted by him on the other accused. Simply for the reason that he did not issue a certificate as requested by the Police, no charge can be held against him under Section 201. In the present case, he is not only charged for the offence under Section 201 Crl.M.C.NO. 662 of 2004 :-4-: I.P.C., but also for the offence under Section 15C of the Abkari Act. The above mode of charge itself shows the inimical approach of the Police against the petitioner. 4. It is relevant to note that the offences under Section 15C of the Abkari Act and under Section 201 of the I.P.C. are different and distinct offences and therefore, the same cannot be charged together, especially in the light of Section 218 of Cr.P.C. For the above sole reason, the charge against the petitioner is liable to be set aside. 5. It is also relevant to note that in order to sustain the charge under Section 201, there must be an allegation to the effect that the person, against whom Section 201 alleged and who screened the real accused, had knowledge or opinion that the accused whom to be screened has committed the offence. Here there is no such allegation. Here, the document signed by the petitioner itself shows that according to his medical examination, the accused has not consumed alcohol. So it cannot be held that the petitioner had any knowledge Crl.M.C.NO. 662 of 2004 :-5-: or information that the other accused had committed the offence. 6. The falsity of the prosecution case against the petitioner is very clear from Annexures A4 to A6 certificates issued by another duty Doctor. In the said certificate, what is stated is that the accused therein are under the smell of alcohol and there is no finding that the accused namely, A1 to A3 consumed alcohol. In order to substantiate the allegation under Section 15C of the Abkari Act, the prosecution has to primarily establish that the persons alleged have consumed alcohol. The smell of alcohol need not be as a result of consuming alcohol. In that sense also, no prosecution will lie against the petitioner. In support of the above submission, the learned counsel made available to me the copies of the judgments of this Court in Crl.M.C.Nos.651 of 2004 dated 4.7.2006, 652 of 2004 dated 2.6.2006 and 663 of 2004 dated 30.11.2006 whereby a learned Judge of this Court in three different cases where the allegations are more or less the same, Crl.M.C.NO. 662 of 2004 :-6-: quashed the charge against the petitioner. 7. In the light of the above facts and circumstances and the materials on record, I am of the view that no charge will lie against the petitioner for the offence under Section 15C of the Abkari Act and Section 201 of I.P.C. and also a single charge would not lie against the petitioner both for under Section 15C of the Abkari Act and Section 201 I.P.C. as the same hit by Section 218 of Cr.P.C. Hence Annexure A7 charge sheet and S.T.No.6305 of 2003 of the Judicial First Class Magistrate Court-II, Aluva against the petitioner and all further proceedings thereon are quashed. The Crl.M.C. is accordingly allowed. V.K.Mohanan, Judge MBS/ Crl.M.C.NO. 662 of 2004 :-7-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- J U D G M E N T Crl.M.C.NO. 662 of 2004 :-8-: DATED: -2-2008 Crl.M.C.NO. 662 of 2004 :-9-: