IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 Crl.MC.No. 2891 of 2010() --------------------------------------- IA. NO.51/2010 IN ST. 33/2010 IN CC. NO.106/2010 OF CONSUMER DISPUTE REDRESSAL FORUM IDUKKI . .......... PETITIONER(S): ADDITIONAL 4TH ACCUSED ---------------------------------------------------------------- SHINTO P.KURIAN, AGED 34 YEARS, S/O.P.T.KURIAN, PAZHYAMPILLIL HOUSE, SHANTHIPURAM KARA, PERUVA, MULAKKULAM VILLAGE, VAIKOM KARA, KOTTAYAM DISTRICT. (NOW WORKING AS THE S.I. OF POLICE, THODUPUZHA). BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.THOMAS J.ANAKKALLUNKAL RESPONDENT(S): PETITIONER/COMPLAINANT AND STATE -------------------------------------------------------------------------------------- 1. SHANTHA HARIDAS, S/O.HARIDAS, THOTTUPURATHU HOUSE, AREEKKARA, KUMARAMANGALAM, THODUPUZHA, IDUKKI DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2891 of 2010 -------------------------- ORDER First respondent filed Annexure-A complaint before Consumer Disputes Redressal Forum, Idukki for an order directing third respondent therein not to change the water connection available to her home and for a further direction that she shall be furnished with water supply unobstructed and also for a damages of Rupees Ten thousand and a cost of Rupees three thousand. In Annexure-A complaint it is alleged by the first respondent that her water connection is being obstructed by the third respondent shown therein. Annexure-B order was passed in the said petition on 04.06.2010, directing notice to the respondents and restraining the respondents from disconnecting the water connection of the first respondent. Annexure-C petition was thereafter filed by the first respondent under Section 27 of Consumer Protection CRMC 2891/10 2 Act contending that in violation of Annexure-B order, on 06.06.2010 at about 2 p.m., third respondent, along with the Sub Inspector of Police and Police Constables, disconnected the water connection. It was also alleged that when Annexure- B order was shown to the Sub Inspector, first respondent was abused and on 07.06.2010 at about 11 a.m., respondents reconnected the water connection. It is contended that disconnection of the water supply is punishable under Section 27 of Consumer Protection Act. In the proceedings initiated as S.T.No.33/2010 under Section 27 of Consumer Protection Act, Consumer Redressal Forum passed Annexure-D order incorporating the petitioner, Sub Inspector of Police, in the array of accused. The order reads: Heard. The learned counsel for the complainant submitted that the Sub Inspector of Police, Thodupuzha, after perusing the order from the forum shown by the complainant, disconnected the water connection of the complainant with the help of other opposite parties. He also abused and CRMC 2891/10 3 threatened the complainant that she may be made as accused in fabricated cases, when the complainant tried to obstruct the same. So the Sub Inspector may also be included in the array of accused. The sworn statement of the complainant itself says that the Sub Inspector of Police Mr.Shinto Kurian, leaded the opposite parties to disconnect the water connection of the complainant even after showing the order from the Forum. So, we think that the police officer, who is in-charge of law and order, who must help the complainant for implementing the order, he himself disobeyed the same. Hence, the I.A.No.51/2010 allowed. The Sub Inspector of Police namely, Shinto Kurian, is also arrayed as accused as per Section 319 of Code of Criminal Procedure. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-D order, as Consumer Disputes Redressal Forum could not have included the petitioner, who does not come within the ambit of Section 27 of Consumer Protection Act, as an accused, invoking the power under Section 319 of Code of Criminal Procedure. Petitioner would contend that even if the powers under Section 319 of Code of Criminal Procedure is to be invoked, evidence should be let in and when no evidence was CRMC 2891/10 4 let it, the order is illegal. 2. Sub-section (1) of Section 27 of Consumer Protection Act provides that where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commissioner, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years or with fine which shall not be less than two thousand rupees, but which may extend to ten thousand rupees or with both. Sub-section (2) of Section 27 of Consumer Protection Act provides that notwithstanding anything contained in the Code of Criminal Procedure, the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the First Class for the trial of offences under the Act and on such conferment of CRMC 2891/10 5 powers, the District Forum or the State Commission or the National Commission, as the case may be, on which the powers are so conferred, shall be deemed to be a Judicial Magistrate of the First Class for the purpose of Code of Criminal Procedure, 1973. Sub-section (3) provides that all offences under the Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be. 3. It is clear from sub-section (1) of Section 27 of Consumer Protection Act that where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order passed by the Consumer Disputes Redressal Forum, such triable person or the complainant can be prosecuted as provided under Section 27(1) of Consumer Protection Act and when the power is so exercised, the Consumer Disputes Redressal Forum is deemed to be treated as a Judicial Magistrate of the First Class, having the powers conferred under CRMC 2891/10 6 the Code of Criminal Procedure. If the power under Section 27 of Consumer Protection Act is exercised in accordance with law by the Consumer Disputes Redressal Forum, the State Commission or the District Forum, the District Forum or the State Commission shall be deemed to be a Judicial Magistrate of the First Class and is competent to exercise the power available under Section 319 of Code of Criminal Procedure. 4. Though Section 319 of Code of Criminal Procedure enables the Magistrate to proceed against a person, who is not appearing before the court as an accused, the power is not unbridled. Under sub- section (1), where, in the course of any inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court can proceed against such person for the offence, which he appears to have committed. Therefore, to CRMC 2891/10 7 exercise the power under sub-section (1) of Section 319 of Code of Criminal Procedure, Magistrate should record evidence and from that evidence, it should appear that a person, who is not facing the trial, has committed an offence and that person could be tried together with the accused facing trial. 5. Section 27 of Consumer Protection Act enables the Consumer Disputes Redressal Forum to proceed against a trader or a person against whom a complaint is made or against the complainant. Petitioner, the Sub Inspector of Police, is admittedly not a trader. He is not the person against whom a complaint is made. He is neither a respondent in the original complaint filed before Consumer Disputes Redressal Forum or in Annexure-C complaint filed for initiating proceedings under Section 27 of Consumer Protection Act. Therefore, the District Consumer Disputes Redressal Forum, in law, cannot proceed against the petitioner as CRMC 2891/10 8 provided under Section 27 of Consumer Protection Act. If he cannot be proceeded under Section 27 of Consumer Protection Act, even if it appears to the Consumer Disputes Redressal Forum that petitioner has committed some offence, he cannot be tried along with the accused who are facing trial in S.T. No.33/2010. Hence, Annexure-D order, incorporating the petitioner in the array of the accused, invoking the power under Section 319 of Code of Criminal Procedure, is illegal. It can only be quashed. Petition is allowed. Annexure-D order is quashed. 17th September, 2010 (M.Sasidharan Nambiar, Judge) tkv