IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 Crl.MC.No. 4237 of 2010() ------------------------- (CRIME NO. 313/2010 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM.) PETITIONERS/ACCUSED 1 AND 2 ---------------------------------- 1. SADIQ AMEEN, AGED 19, S/O.MUHAMMED MUSTAFA, II YEAR B.PHARM STUDENT, COLLEGE OF PHARMACEUTICALS SCIENCES, MEDICAL COLLEGE, THIRUVANANTHAPURAM, RESIDING AT MANNANGAL, VILAYOOR WEST P.O., PATTAMBI, PALAKKAD DISTRICT. 2. FUAD HARIS, AGED 20, S/O.HARIS N.V., II YEAR B.PHARM STUDENT, COLLEGE OF PHARMACEUTICALS SCIENCES, MEDICAL COLLEGE, THIRUVANANTHAPURAM, RESIDING AT SUKOON, NEAR SHIVANANDA VILASOM SCHOOL, V.O.ROAD, VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.D.KISHORE SMT.MINI GOPINATH RESPONDENTS/ STATE & COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM. 3. DR.VIJITH VIJAY, S/O.VIJAYAN PILLA 'SAI SREE', NEAR SANKARA NARAYANA TEMPLE, ARAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. R1 AND R2 BY PUBLIC PROSECUTOR ADV.MR. K.J. MOHAMMED ANZAR. R3 BY ADV. SRI.K.B.PRADEEP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.4237 of 2010 -------------------------------------- Dated this the 25th day of January, 2011. ORDER Petitioners are accused in Crime No.313 of 2010 of Medical College Police station, Thiruvananthapuram and C.C.No.463 of 2010 of the court of learned Additional Chief Judicial Magistrate,Thiruvananthapuram for offences punishable under Sections 447, 341, 294(b), 323 and 506(i) read with Section 34 of the Indian Penal Code (for short, “the IPC”) and Section 4 of the Kerala Prohibition of Ragging Act, 1998 (for short, “the Act”). Case is that on 05.04.2010 at about 7.30 p.m. Petitioners allegedly trespassed into the room of respondent No.3/the defacto complainant, wrongfully restrained, used obscene words, voluntarily caused hurt, criminally intimidated him with death and committed offence under Section 4 of the Act. On the information given by respondent No.3, respondent No.2, Sub Inspector registered a case for offences under the IPC referred to above. While the investigation was in progress it would appear that the Principal of the Medical College Hospital, Thiruvananthapuram forwarded a report of enquiry to the Sub Inspector which allegedly related to the offence punishable under Section 4 of the Act. Thereon the Sub Inspector reported to the learned Additional Chief Judicial Magistrate that in the light of report forwarded to him by the Principal of the Medical College Hospital offence under Section 4 of the Act is also incorporated in Annexure-I, FIR and the matter is being investigated. After investigation respondent No.3 filed final report against Crl.MC No.4237/2010 2 all the accused before learned Additional Chief Judicial Magistrate. Learned Additional Chief Judicial Magistrate has taken cognizance and filed a case against petitioners as C.C.No. 463 of 2010. Prayer in this proceeding is to quash the proceedings against petitioners on two grounds, viz., that the investigation conducted and cognizance taken in respect of offence under Section 4 of the Act is illegal and secondly, that the matter has been compounded between petitioners and respondent No.3/defacto complainant as revealed from Annexure-III affidavit of the latter. 2. I have heard learned counsel for petitioners, respondent No.3 and the learned Public Prosecutor who appeared on behalf of respondent Nos.1 and 2. Learned Public Prosecutor after getting instruction from the officer concerned has submitted that there is a settlement of the dispute between petitioners and respondent No.3 outside court. 3. The first limb of argument is as to the legality of investigation conducted, final report and cognizance taken for offence under Section 4 of the Act. That argument is based on Section 6 of the Act, Section 155 of the Code of Criminal Procedure (for short, “the Code”) and the decision of this Court in Ahammed Manaf v. Sub Inspector of Police (2010 (4) KLT 837). It is not disputed before me that offence under Section 4 of the Act is non- cognizable in which case the procedure under Section 155 of the Code was to Crl.MC No.4237/2010 3 be followed by the Investigating Officer. Under the said provision when information is given to the Police Officer about commission of non-cognizable offence, he shall refer the informant to the Magistrate and on getting order from the Magistrate having power to try such offence shall investigate into such non- cognizable offence. In the present case it is not shown, and going by Annexure- II, report it is seen that it was not a case where, on getting report of enquiry from the Head of Institution respondent No.2 had referred the informant (regarding commission of offence under Section 4 of the Act) to the Magistrate concerned and on getting the order from the Magistrate he investigated the case. 4. Going by Section 6 of the Act, the Head of the Institution on receiving a complaint from any of the persons referred to therein is to conduct an enquiry into the matter and if prima facie it is found true, has to “forward the complaint to the Police Station having jurisdiction over the area in which the educational institution is situate, for further action”. In otherwords it is not as if the Head of the Institution is required to make a complaint of his own to the Station House Officer concerned, instead he is to forward the complaint received from any of the persons referred to in Section 6 (1) of the Act after conducting an enquiry to find prima facie the truth of the allegation. Going by Annexure-II, report it is seen that it is not on a complaint preferred by the Head of the Institution the investigation was conducted. The investigation into the offence under Section 4 of the Act is in violation of Section 6 of the Act and Section 155 Crl.MC No.4237/2010 4 (2) of the Code. In the circumstances, respondent No.2 was not legally entitled to investigate into the offence under Section 4 of the Act in which case the final report submitted in that regard and cognizance taken thereon can only said to be illegal as held in Ahammed Manaf v. Sub Inspector of Police. 5. Then the next question is whether offences under the IPC alleged against petitioners are to be compounded. It is seen that the alleged incident occurred between respondent No.3, himself, an Ayurveda Physician aged about 26 years and an MBBS student and petitioners who are B.Pham. students aged about 21 years. In Annexure-III, affidavit respondent No.3/defacto complainant has stated the circumstances under which he happened to give first information to respondent No.2 based on which the case was registered. He also stated that on a proper recollection of facts he learnt that petitioners are not involved in the case. He states that he has condoned the acts of petitioners in the matter. Having regard to the nature of offences attributed to petitioners under the IPC, subsequent settlement of the dispute between the parties outside court, considering the fact that petitioners and respondent No.3 are students of the same institution though attending different courses and also taking into account the fact that success of prosecution in a case of this nature largely depended on the evidence respondent No.3 is to give and hence the bleak possibility of prosecution ending in a successful culmination in view of the stand of Crl.MC No.4237/2010 5 respondent No.3, I am inclined to think that to maintain the harmonious relationship petitioners and respondent No.3 have now reached, this Court should interfere under Section 482 of the Code. Resultantly this petition is allowed for the reasons stated above. The final report in Crime No.313 of 2010 of Medical College Police Station, Thiruvananthapuram, cognizance taken thereon and all further proceedings in C.C.No.463 of 2010 of the court of learned Additional Chief Judicial Magistrate, Thiruvananthapuram concerning petitioners are quashed. THOMAS P.JOSEPH, Judge. cks