IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.MC.No. 113 of 2006 ------------------------ ST.1136/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... PETITIONER/: ACCUSED ---------------------- PARAPPURATH VEETTIL VENU, S/O.NARAYANAN, MAHOUT, COCHIN DEVASWOM BOARD, COCHIN. BY ADV. SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HOUSE OFFICER, PUDUKKAD POLICE STATION, PUDUKKAD, TRICHUR DISTRICT. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.M.C.NO. 113 of 2006 ======================== Dated this the 11th day of December 2008 ORDER The petitioner is the sole accused in S.T.No.1136/2005 on the file of the Court of Judicial Magistrate of First Class, Irinjalakuda. The case was initiated against the petitioner on the basis of charge sheet laid against him by the police for the offence punishable under Section 289 of the Indian Penal Code. 2. The facts of the case as stated by the petitioner in this petition is that on 22-11-2004 at 2.45 p.m. the elephant named “Triprayar Ramachandran” belonging to the Cochin Devaswom Board killed one of its mahout, Valsalan. Copy of the F.I.R along with the first information statement is produced as Annexure-I. Annexure-2 is the copy of the charge sheet laid against the petitioner in Crime No.645/2004. The prayer in this petition is to quash all further proceedings as against the petitioner in S.T.No.1136/2005 pending before the Judicial First Class Magistrate Court, Irinjalakuda. CRMC.113/2006 -2- 3. Heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. It is submitted by the learned counsel for the petitioner that the petitioner was made as the accused in the present case for the sole reason that he was the first mahout of the elephant “Triprayar Ramachandran”. It is also submitted that the petitioner was on leave on the date of incident and his leave application dated 18-11-2004 was ordered on 19-11-2004 and he was granted casual leave for five days from 22-11-2004 to 26-11-2004 as recommended by the Devaswom Officer of Vadakkumnathan temple. Annexure-4 is the photostat copy of the proceedings of the Devaswom Assistant Commissioner,Thrissur dated 19-11-2004. Therefore, according to the petitioner's counsel, Section 289 of the Indian Penal Code is not attracted in this case and all further proceedings against him in S.T.1136/2005 is liable to be quashed. 4. Section 289 of I.P.C.reads as follows: “289.Negligent conduct with respect to animal.-Whoever knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any CRMC.113/2006 -3- probable danger to human life, or any probable danger of grievous hurt from such animal, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 5. Annexure-I is the copy of the F.I.R. in Crime No.645/2004. The first information statement given by Shyam, the third mahout to the S.I.of Pudukkad Police station, is also attached along with Annexure-A1. It was specifically mentioned therein regarding the complicity and the responsibility of the first mahout and it was on the instruction of the first mahout, the second and third mahouts were looking after the elephant, who was violent for the last three months before the alleged incident. On the basis of the first information statement, Annexure-A2 charge sheet was laid against the petitioner and is pending before the Court of the Judicial First Class Magistrate, Irinjalakuda as S.T.No.1136/2005. To proceed a case against an accused under Section 289 of I.P.C. what is to be looked into is whether there are sufficient materials in the first information statement to proceed against such person under the said CRMC.113/2006 -4- section. In the present case, the prosecution is bound to prove the case after adducing evidence by examining the witnesses. Whether any offence has been committed by the accused in the present case is yet to be decided. This Court cannot give a prima facie decision. It is the evidence adduced before the trial court which decides the fate of the accused person. Whether the petitioner herein has committed any offence and the involvement of the petitioner in the said offence etc. have not been decided. It is submitted by the learned counsel for the petitioner that he was on leave from 22-11-2004 to 26-11-2004 and the same was sanctioned to him to go on a pilgrimage to Sabarimala. Copy of the leave application and the order passed therein were produced before this Court as Annexures A3 and A4 respectively. The petitioner as the accused before the concerned court can produce those documents before that court at appropriate stage and this Court cannot verify the veracity, admissibility etc.of those documents. Considering the facts and circumstances of this case, I find no reason to take a view that CRMC.113/2006 -5- the continuance of the proceedings against the petitioner may amount to the abuse of process of the court or that the quashing of the impugned proceedings would secure the ends of justice. Hence, it will not be justified in quashing the proceedings as against the petitioner as prayed for in this petition. The Crl.M.C.is dismissed. Sd/- M.C. HARI RANI JUDGE ks.