IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Crl.MC.No. 711 of 2010() ------------------------------------ (CRIME NO.599/2010 OF CITY TRAFFIC POLICE STATION,TRIVANDRUM) PETITIONER(S): ACCUSED: ----------------------------------------- K.R.DILEEPKUMAR,AGED 54 YEARS, S/O.LATE T.V.RAGHAVAN,PROPRIETOR OF M/S.RAVEENDRA COIR WORKS,KANICHUKULANGARA,CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SMT.A.R.USHA RESPONDENT(S): COMPLAINANTS: ----------------------------------------------------- 1. NAZEER,S.I.OF POLICE,CITY TRAFFIC POLICE STATION,PATTOM,THIRUVANANTHAPURAM. 2. C.I.OF POLICE,TRAFFIC POLICE STATION, PATTOM,THIRUVANANTHAPURAM. 3. ASST.COMMISSIONER OF POLICE, TRAFFIC POLICE STATION,PATTOM, THIRUVANANTHAPURAM. 4. DIRECTOR GENERAL OF POLICE,TRAFFIC POLICE STATION,PATTOM,THIRUVANANTHAPURAM. 5. STATE REPRESENTED BY HOME SECRETARY, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.M.C. No. 711 OF 2010 -------------------------- Dated this the 17th day of March, 2010 O R D E R This petition is filed challenging Annexure-A2 notice issued by Sub Inspector of Police, City Traffic Police Station, Thiruvananthapuram directing him to appear before Judicial Firt Class Magistrate, Thiruvananthapuram on 6.3.2010 in Crime 599/2010, stating that he is accused in that crime registered for the offence under Section 279 of Indian Penal Code and Section 185 of Motor Vehicles Act. The case of the petitioner is that on 22.2.2010 he had consumed “dasamoolarishtam”, evidenced by Annexure A1 bill, and was driving Tata Indica Car from Thiruvananthapuram to Alappuzha and at around 3 pm, Sub Inspector of City Traffic Police Station detained him with some other vehicle and demanded payment of Rs.500/-. When refused to pay, denying consumption of liquor and stating that he had only consumed “dasamoolarishtam” and showed the bottle containing “dasamoolarishtam” and the bill, the car was detained at Pattom Police Station. Even from there, the Sub Inspector demanded money and ultimately at the intervention of Crl.M.C.No. 711/2010 2 an Advocate he was released on bail. Thereafter crime 599/2010 was falsely registered and Annexure-A2 notice was issued and he was not subjected to any test and he was not driving the vehicle negligently and therefore Annexure-A2 notice is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned Public Prosecutor submitted that petitioner is not an accused in Crime 599/2010 but in crime 601/2010 and the crime mentioned in Annexure-A2 notice was a mistake and that fact was communicated to the petitioner orally by calling him over phone. Learned Public Prosecutor submitted that the petitioner was subjected to breath analysis test and it showed that percentage of alcohol in his blood at that time exceeded 30 mg per 100 ml of blood and therefore the offence under Section 185 of Motor Vehicles Act is attracted and as petitioner was driving negligently, an offence under Section 279 of Indian Penal Code was also committed. 4. Annexure-A2 is a notice issued by the Sub Inspector directing the petitioner to appear before the Magistrate. If petitioner has committed an offence under Section 279 of Indian Penal Code, Crl.M.C.No. 711/2010 3 learned Magistrate has to take cognizance of the offence only on a final report submitted by the police. If cognizance is taken, it is for the Magistrate to issue summons to the petitioner. The Sub Inspector is not to direct the petitioner to appear before the Magistrate, even before taking cognizance. Even after a final report is submitted, it is for the Magistrate to decide whether cognizance is to be taken or not and even if to be taken, for what all offences. In such circumstances, petition is allowed. Annexure-A2 notice is quashed. If the learned Magistrate takes cognizance, and summons is issued, petitioner is at liberty to raise all the contentions before the court. M.SASIDHARAN NAMBIAR, (JUDGE ) vps Crl.M.C.No. 711/2010 4 Crl.M.C.No. 711/2010 5