IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.MC.No. 2671 of 2009(D) -------------------------------------- (CRIME NO. 589/2006 OF VALAPATTANAM POLICE STATION) .................... PETITIONER/ ACCUSED NO.7: ------------------------------------------- CHANDRATHIL NIJIL, AGED 24 YEARS, S/O. NARAYANAN, TAXI DRIVER, NIKHILA NIVAS, MUTTANNUR, P.O. PATTANNUR, KANNUR DISTRICT. BY ADVS. MR.C.KHALID, MR.N.GOPINATHA PANICKER, MR.T.P.SAJID, SMT.M.A.SULFIA, SMT.NAMITHA JYOTHISH. RESPONDENTS/ STATE & COMPLAINANT: ------------------------------------------------------------- 1. STATION HOUSE OFFICER, VALAPPATTANAM POLICE STATION. 2. DISTRICT SUPERINTENDENT OF POLICE, P.O. KANNUR, KANNUR DISTRICT. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 4. THE DETECTIVE INSPECTOR, CBCID, S.I.G-III, KOZHIKODE. R1 TO R4 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2671 OF 2009 =========================== Dated this the 2nd day of November,2009 ORDER Petitioner is the seventh accused in C.P.18/2009 on the file of Judicial First Class Magistrate Court- II, Kannur. Crime 589/2006 was registered by Valappattanam Police for the offence under section 489B and 489C of Indian Penal Code. Prosecution case is that on 6.12.2006 accused 1 to 6 travelled in a Taxi Car driven by the petitioner as its driver, carrying the counterfeit currency notes and the car was intercepted by the police at Kottampalli on getting information and on search counterfeit currency notes were seized from accused 1 to 6. Alleging that petitioner is also involved, final report is submitted as against the petitioner also which was taken cognizance. Petitioner also filed Crl.M.C.1187/2007 before this court at the investigation stage which was disposed by Annexure-3 order directing the police to investigate the case as expeditiously as possible and take a decision specifically on the question of complicity of the petitioner as it was contended by the Crl.M.C.2671/2009 2 petitioner that he was an innocent taxi driver whose service as a driver was made use of by the other accused and he had no common intention with the other accused. After completing the investigation as charge was laid as against the petitioner also, which was taken cognizance by the learned Magistrate as C.P.18/2009, this petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings as against the petitioner contending that there is no material whatsoever connecting the petitioner with the offence. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner pointed out that for the reason that the taxi car of the petitioner was hired by accused 1 to 6 and accused 1 to 6 were in possession of counterfeit currency notes, it cannot be used as factors to show that petitioner was a party to the offences committed by accused 1 to 6 or that they were carrying the counterfeit currency notes with the consent or knowledge of the petitioner. It is argued that without materials to connect the petitioner with the possession of counterfeit currency notes when no counterfeit currency was seized from the possession of the petitioner, continuation of the proceedings as against the Crl.M.C.2671/2009 3 petitioner is only an abuse of process of the court and it is to be quashed. Learned counsel submitted that the statement of witnesses recorded under section 161 of Code of Criminal Procedure do not show that there was any meeting by the petitioner with the other accused prior to the time of hiring the taxi and there was no conspiracy by accused 1 to 6 with the petitioner. It was vehemently argued that as there is no legal evidence to connect petitioner with the offence, continuation of the proceedings as against the petitioner is to be quashed. 4. Learned Public Prosecutor submitted that the investigation revealed that petitioner was engaged by accused 1 to 6 and at an odd hour accused 1 to 6 were found in the car driven by the petitioner when it was intercepted and when accused 1 to 6 were searched counterfeit currency notes could be unearthed and therefore petitioner is also liable for the offence. Learned Public Prosecutor fairly submitted that 161 statement of the prosecution witnesses recorded under sections 161 of Code of Criminal Procedure do not show that the petitioner had knowledge that accused 1 to 6 were in possession of the counterfeit currency notes or were dealing with counterfeit currency notes. 5. The question is in such circumstance for the sole reason that the accused 1 to 6 who are dealing in Crl.M.C.2671/2009 4 counterfeit currency notes hired the taxi car driven by the petitioner and when the car was intercepted accused 1 to 6 were there in the car with the counterfeit currency notes are sufficient to hold either that there was a common intention for the petitioner along with accused 1 to 6 to possess or transact the counterfeit currency notes. Even if petitioner was unaware of the counterfeit currency notes with the accused, if he was hired by them and while accused 1 to 6 were being transported in the taxi car, it was intercepted and accused 1 to 6 were arrested, and on search counterfeit currency notes were seized from accused 1 to 6 it cannot lead to an irresistible conclusion that petitioner was also a party to the commission of the offence. In that situation the driver of the car cannot be prosecuted unless there are materials to show that petitioner was one among the group of accused 1 to 6 and the counterfeit currency notes seized were in their possession with the knowledge of the driver. When the materials collected by the Investigating Officer and produced before court in support of the charge do not show the complicity of the petitioner with the other accused in committing the offence, even if petitioner is to be tried, ultimately he cannot be convicted. In such circumstances, it is not in the interest of justice to continue the Crl.M.C.2671/2009 5 prosecution. Petition is allowed. C.P.18/2009 on the file of the Judicial First Class Magistrate Court-II, Kannur as against the petitioner is quashed making it clear that the case as against the other accused is to be proceeded. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006