IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 Crl.MC.No. 4103 of 2009() ---------------------------------- CRIME NO.64/2003 OF CENTRAL POLICE STATION. CC.2625/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... PETITIONER(S): ACCUSED NOS.1 TO 84 ------------------------- 1. SUDHEER KUMAR,AGED 46,S/O.KRISHNANKUTTY NAIR, CHENGANATHU HOUSE,AYYAPPANKAVU KARA, ERNAKULAM. 2. BINISH,S/O.THOMAS,AGED 29,THEKKEMURIYIL VEETTIL,KALKOOTHAL VILLAGE,UDUMBANCHOLA TALUK, IDUKKI. 3. SREEKUMAR,S/O.KOCHUKUNJU,AGED 29, VALLYAKKAN HOUSE,MANNAR VILLAGE,ALAPPUZHA. 4. BABU,AGED 38,S/O.NARAYANAN, KINARUVILAYIL HOUSE,ANGADIKKAL VILLAGE, PATHANAMTHITTA. 5. PAUL T.SAMUEL,AGED 31,S/O.SAMUEL, HOUSE NO.TC 12/1242,VARAMBASSERY DESOM, VANCHIYOOR VILLAGE,THIRUVANANTHAPURAM. 6. ANOOP,AGED 24,S/O.SAHADEVAN, MADAPPURATHU HOUSE,ILLITHODU DESOM,MALAYATTOOR. 7. PRAVEEN,AGED 29,S/O.GOPALAN,GEETHABHAVAN, MANNAR VILLAGE,ALAPPUZHA. 8. DIXON,AGED 37,S/O.JACOB,THAYYIL HOUSE, ALAPPUZHA WEST VILLAGE,ALAPPUZHA. 9. ANIL KUMAR,AGD 41,S/O.GOPALAN, KALLUMPURATHU HOUSE,KODUMAN VILLAGE, PATHANAMTHITTA. 10. VIJAYAKUMAR,AGED 35,S/O.VIJAYAN, MUNDADAN HOUSE,MALAYATTOOR DESOM,KALADI VILLAGE. CRMC. NO.4103/2009 11. M.T.GOPINATHAN,AGED 64,S/O.THEVAN, HOUSE NO.148,VEZHAPPURAM SETTLEMENT COLONY, RAMANKARI VILLAGE,ALAPPUZHA. 12. IMAMUDIN,GED 48,S/O.BADARUDDIN, H.T.C.NO.12/1242,VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 13. SIVADASAN,AGED 29,KUNJAN BAVA, CHETHIYIL HOUSE,VAIKOM TALUK,KOTTAYAM. 14. SIYADU,AGED 30,S/O.KOCHUPAREETHU, NADUKKALAYIL HOUSE,KICHERI DESOM,AMBALOOR VILLAGE. 15. THANKAPPAN,AGED 51,KOCHUKANDAN, MUTHIRAKKATTU PARAMBIL HOUSE,KOMBARA JUNCTION, NOCHIMA KARAYIL,ALUVA EAST VILLAGE. 16. ST.JOSEPH,AGED 36,S/O.JOSEPH, CHAMAKKALAYIL HOUSE,CHERIYANADU VILLAGE, CHENGANNOOR TALUK,ALAPPUZHA. 17. T.MOHANAN,AGED 40,S/O.K.THANKAPPAN, ABHIRANYA HOUSE, PAZHAVITTU VILLAGE, ALAPPUZHA. 18. SANTHI RAJ,AGED 34,W/O.SINILAL, THE CENTER HOUSE,THOMANA MURIYIL,AMBALAPPUZHA VILLAGE,ALAPPUZHA. 19. GIRIJA,AGED 37,D/O.NARAYANA PANICKER, VALIYAVIDA HOUSE, KARUMADI DESOM,AMBALAPPUZHA VILLAGE, ALAPPUZHA. 20. SALVIN,AGED 30,S/O.THOMAS POTHAN, KANIYANTHARAYIL HOUSE,THURAVOOR VILLAGE, ERNAKULAM. 21. JOHNY KUTTY,AGED 46,S/O.ULAHANNAN, KARIMBIN VEETTIL,THIRUVANKULAM DESOM, KOTTAYAM VILLAGE,KOTTAYAM. 22. RAJENDRAN,AGED 47,S/O.KUNJAN, CHURAKULANGARA VEETTIL,PUTHUVASSERY DESOM, AMBALLOOR VILLAGE. 23. N.C.NARAYANAN,AGED 58,S/O.CHOTHI, NEDUMTHOTTIL VEETTIL,KULAYETTIKARA COLONY, KULEYETTIKKARA VILLAGE, ERNAKULAM. CRMC. NO.4103/2009 24. SOBHA,AGED 41,W/O.SUDHEER KUMAR, KARAMALAYIL VEETTIL,MULAKULAM NORTH KARA, PIRAVOM VILLAGE. 25. SABURA,AGED 31,W/O.BIJU,HOUSE NO.TC 12/1242,NEAR KUNNUKUZHI LAW COLLEGE JUNCTION, THIRUVANANTHAPURAM. 26. RAJI,AGED 42,W/O.RAJENDRAN, CHURAKULANGARA VEETTIL,CHURAKULANGARA KARAYIL, NEAR KICHERI HOSPITAL,AMBALLOOR VILLAGE. 27. USHA,AGED 38,W/O.MOHAN KUMAR,MUDAKKARIL VEETTIL,MULAMKULAM KARA,PIRAVOM VILLAGE. 28. SHEELA,AGED 41,W/O.IMMAMUDDIN,RESIDING NEAR POLICE STATION,ALAPPUZHA VILLAGE, ALAPPUZHA. 29. RAJI,AGED 34,D/O.RAJAPPAN,AMBALAPUZHA VILLAGE, ALAPPUZHA. 30. PADMAJA,W/O.RADHAKRISHNAN,CHALUNGAL VEETTIL,KANJIKUZHI VILLAGE,KANICHUKULANGARA, ALAPPUZHA. 31. MINI,AGED 41,W/O.VENUGOPAL,KARIMBIN VEETTIL,THIRUMATHUKKAL KARAYIL,NEAR SUCI OFFICE, KOTTAYAM. 32. ASHA,AGED 32,W/O.OMANAKUTTAN,ASHABHAVAN, CHETTIKULANGARA DESOM,PERUMGALA VILLAGE,MAVELIKARA TALUK,ALAPPUZHA. 33. REKHA,AGED 32,D/O.SOMAN,HOUSE NO.145, SETTLEMENT COLONY,RAMANKARI VILLAGE,KUTTANADU TALUK,ALAPPUZHA. 34. SANTHA,AGED 46,W/O.NARAYANAN, NEDUMTHOTTIL VEETTIL,KULAITTIKKARA HARIJAN COLONY, KULAITTIKKARA VILLAGE. 35. MINI,AGED 34,W/O.SHAJAHAN,HOUSE NO.TC-12/ 1242,NEAR KUNNUKUZHI LAW COLLEGE, THIRUVANANTHAPURAM. 36. BENNY,AGED 39,S/O.JOSEPH,HOUSE NO.TC.12/ 1241,NEAR LAW COLLEGE,THIRUVANANTHAPURAM. 37. MADHUKUMAR,AGED 41,S/O.POTHAN, THATTARUKKATTIL VEETTIL,MANNAR VILLAGE, CHENGANNOOR TALUK,ALAPPUZHA. CRMC NO.4103/2009 38. BINU,AGED 33,S/O.BABY,CIYON VILLA PATHANAMTHITTA VILLAGE,KOZHACHERI TALUK, PATHANAMTHITTA. 39. SAJEEV,AGED 40,S/O.GOVINDAN, ANAKUZHIKKADU VEETTIL,NEAR KOMBARA JUNCTION, NOCHIMA KARA, ALUVA EAST VILLAGE. 40. THAMBI,AGED 42,S/O.KOCHON,ANDITHARAYIL VEETTIL,KULAITTIKARA HARIJAN COLONY,KULAITTIKARA. 41. VENUGOPALAN,AGED 57,S/O.NARAYANAN NAIR, KRISHNAVILASAM,ERUMBUZHI KARAYIL,VADAKKEMURI VILLAGE,VAIKKOM TALUK,KOTTAYAM. 42. DINESHAN,AGED 38,S/O.VELAYUDHAN, KAIPPANCHERRY VEETTIL,KARINGACHIRA KARA, THIRUVANKULAM. 43. SASIKUMARAN,AGED 36,S/O.KUMARAN, MARIYANATTU VELI VEETTIL,KANICHUKULANGARA DESOM, MARARIKULAM NORTH VILLAGE,ALAPPUZHA. 44. DEEPU,AGED 29,S/O.VIJAYAKUMAR, SULEKHA BHAVAN,ATTIPPURA VILLAGE, THIRUVANANTHAPURAM. 45. MADHUKUMAR,AGED 37,S/O.GOPALAN, VILANGOOR DEWASAM PARAMBIL VEETTIL, THIRUVAMBADI WARD,MULLAKKAL VILLAGE,AMBALAPUZHA TALUK, ALAPPUZHA. 46. RADHA,AGED45,D/O.ACHUTHAN,THE CENTER HOUSE,KOTHAMANAMURI AMBALAPPUZHA VILLAGE, ALAPPUZHA. 47. PARTHASARATHI VARMA,AGED 42,RAVI VARMA, MANNAR PADIKITTAYIL VEETTIL,KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK,ALAPPUZHA. 48. KANNAN,AGED 43,S/O.KRISHANAN ACHARI, MALIYEKKAL VEETTIL,VELLUR VILLAGE,VAIKKOM TALUK, KOTTAYAM. 49. SASIMON,AGED 41,S/O.KANKANI, KIZHAKKEPUNNAGARI VEETTIL,NEERKANAM VILLAGE, AMBALAPUZHA TALUK,ALAPPUZHA. 50. BABU,AGED 44,S/O.VELAYUDHAN,ALACHUVATTIL VEETTIL,KARIMALAPETTY DESOM,KULAYATTIKARA VILLAGE, KANAYANNUR TALUK. CRMC. NO.4103/2009 51. THAMSHAN,AGED 42,S/O.OHAMGI, KOCHUPARAMBIL VEETTIL,ARAYANKAVU JUNCTION, THOLAYATTIKARA VILLAGE,KANAYANNUR TALUK. 52. MOHANAN,AGED 50,S/O.KUNJUKUNJU, KANNANKERI VEETTIL,VADAKKEMURI VILLAGE,VAIKOM TALUK,KOTTAYAM. 53. VISWAKUMAR,AGED 44,S/O.THEVAN,THE CENTER HOUSE,KACHERIMUKKU AMBALAPPUZHA VILLAGE, ALAPPUZHA. 54. PRATHAPAN,AGED 42,S/O.GOPALAKRISHNAN NAIR,CHENGANATTU VEETTIL,NEAR AYYAPPAN KAVU, KANAYANNUR TALUK,ERNAKULAM. 55. BINU,AGED 36,S/O.RAGHAVAN,NETTIKKATTU VEETTIL,MANIKAMANGALAM KARA,KALADI VILLAGE, ERNAKULAM. 56. C.P.NISHAL,AGED 23,S/O.PARAMASIVAN, CHULLIPARAMBIL VEETTIL,VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. 57. K.K.PRAKASH,AGED 41,S/O.KUNJIRAMAN, KAVALAM CHERI VEETTIL,KALADI VILLAGE, KALADY. 58. MOHANAN,AGED 34,S/O.MATHI, KANNAMANGALAM KUNNEL VEETTIL,MAVELIKKARA TALUK, ALAPPUZHA. 59. BIJU JOSEPH,AGED 35,S/O.KURIAPPAN, KAKKANATTU VEETTIL,KOTTAYAM TALUK, KOTTAYAM. 60. RAJAN,AGED 48,S/O.KUTTAPPAN, CHIRAYATHUVETTIL,VATHAKKADU KARA,THURAVOOR VILLAGE ERNAKULAM. 61. P.P.VIJAYAN,AGED 46,S/O.PARTHAN, PUDUVAL VEETTIL,PURAKKATTU VILLAGE,AMBALAPUZHA VILLAGE,ALAPPUZHA. 62. MAONHARAN,AGED 41,S/O.PADMANABHAN, THE LIGHT HOUSE,KANJIKUZHI VILLAGE, CHERTHALA TALUK,ALAPPUZHA. 63. VASUDEVAN,AGED 36,S/O.M.K.KUNJAN, KADAMANTHURUTHI HOUSE,THIRUVANKULAM VILLAGE, ERNAKULAM. CRMC. 4103/2009 64. M.RAJU,AGED 34,S/O.AYYAPPAN,EDAMPADATH HOUSE,KULETTIKARA HARIJAN COLONY ARAYANKAVU, KULETTIKARA VILLAGE,ERNAKULAM. 65. C.K.RAVI,AGED 47,S/O.KUNJAN, CHENARAMELIL HOUSE,KULETTIKARA DESOM, AMBALLOOR VILLAGE. 66. SREEKUMAR,AGED 29,S/O.PONNAPPAN, ABHIRAMAYA HOUSE,PAZHAVEEDU DESOM, ALAPPUZHA. 67. ANILKUMAR.T.B,AGED 36,S/O.BHAKARAN, THAKADIYIL PARAMBU HOUSE,THURUTHI DESOM, VAZHAPPILLY VILLAGE,CHANGANASSERY TALUK,KOTTAYAM. 68. K.N.RAJAN,AGED 42,S/O.NARAYANAN, NADAPPURATHU HOUSE,MADAPILLY VILLAGE, CHANGANASSERY,KOTTAYAM. 69. ABHILASH,AGED 31,S/O.GOPALAN, KALLUMPUPRATH HOUSE,NEDUMAN VILLAGE,ADOOR TALUK, PATHANAMTHITTA. 70. BINU.C,AGED 32,S/O.CHANDRASENAN, KOTTAPARAMBIL HOUSE,ALAVILLAGE,CHENGANNOOR TALUK, ALAPPUZHA. 71. RAJEESH,AGED 31,S/O.VELAYUDHAN, PILAPILLY HOUSE,KOTTAMAM DESOM,KALADY VILLAGE, ERNAKULAM. 72. SUDHEER,AGED 38,S/O.OHAMGI, KOCHUPARAMBIL HOUSE,NEAR PATTUPURAKKAL TEMPLE, KULETTIKARA VILLAGE,ERNAKULAM. 73. KOSI,AGED 40,S/O.THANKACHAN, PUTHANPURAYIL HOUSE,THATTARAMBALAM DESOM, MAVELIKARA VILLAGE,ALAPPUZHA. 74. C.N.MUKUNDAN,AGED 41,S/O.NARAYANAN, CHERAPARATHU HOUSE,PERINGANAMKULAM,ERUMBANAM KARA, THIRUVANKULAM VILLAGE. 75. RAJEEVAN,AGED 34,S/O.RAJAN KUNDOM THURUTHIL VEETTIL,KAMBIVELIKKAKAM KARA, THIRUVANKULAM VILLAGE. 76. ANIL,AGED 37,S/O.RAJAN,VALIYATHARAYIL HOUSE,RAMANKARI KARA,PALLIKUTTAMA BHAGAM, KUTTANADU TALUK. CRMC. NO.4103/2009 77. RAJEEVAN,AGED 48,S/O.SUKUMARAN, THE CENTER HOUSE,NEAR AMBALAPPUZHA POLICE STATION, AMBALAPUZHA. 78. AUGUSTINE,AGED 39,S/O.PAULOSE, PALATTI HOUSE,THURAVOOR KAVALA BHAGOM, THURAVOOR VILLAGE, ALUVA. 79. NARANAYAN,AGED 37,S/O.KOCHON, ANDITHARAYIL HOUSE,AMBALOOR PANCHAYATH, KULLETTIKARA VILLAGE, KANAYANNUR TALUK. 80. CHANDRASEKHARAN,AGED 42,S/O.BHASKARAN NAIR,MADAPALLY HOUSE,KATTAPANA PANCHAYATH, IDUKKI. 81. NAZIR KURIKALAKATHU,AGED 32,S/O.ERAMU, CHIRAKKAL VILLAGE,KANNUR. 82. PRASAD,AGED 36,S/O.SUNDARESAN, KUDUMBISSERI HOUSE,KANDALLOOR VILLAGE, ALAPPUZHA. 83. ASOKAN,AGED 45,S/O.BHASKARAN, CHERAVIDATHU HOUSE,ERUMBINAM DESOM, THIRUVANKULAM VILLAGE,KANAYANNUR TALUK. 84. FRANCIS,AGED 46,S/O.JOSEPH,KALATHINKAL HOUSE,CHELLANAM VILLAGE,ERNAKULAM. BY ADV. MR.K.S.MADHUSOODANAN RESPONDENT(S): FORMAL PARTY/COMPLAINANT -------------------------- 1. STATE OF KERALA TO BE REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. SUB INSPECTOR OF POLICE,CENTRAL POLICE STATION,ERNAKULAM. BY PUBLIC PROSECUTOR MR.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ======================== Crl.M.C No.4103 OF 2009 ==================== Dated this the 7th day of January, 2010. O R D E R Petitioners are the accused in C.C.No. 2625/03 on the file of Judicial First Class Magistrate Court-II Ernakulam. Petition is filed under Section 482 of Code of Criminal Procedure Code to quash Annexure-II final report and the cognizance taken contending that continuation of the proceedings is only an abuse of process of the Court. Petitioners would contend that though it is alleged that offence under Section 188 of Indian Penal Code was committed, in the absence of a complaint as provided under Section 195 (1) (A) (i) of Code of Criminal Procedure, no Court shall take cognizance of the offence under Section 188 except on a complaint in writing of the public servant concerned servant or of some other public servant to whom he is administrative of subordinate and in the absence of such a complaint, the cognizance taken for the offence under Section 188 is bad. It is also It is also contended that to attract an offence under Section 283 of Indian Penal Code, there should be materials to show that any person has been obstructed in the public way and not a Crl.M.C No.4103 OF 2009 2 single person was even cited as a witness to show that any obstruction or injury was caused to him or any other person and hence even if petitioners are tried there is no likelihood of a conviction and therefore it is not in the interest of justice to continue the prosecution as it would amount to only abuse of process of the court. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Section 195 (1) of Code of Criminal Procedure mandates that no court shall take cognizance of any offence punishable under Sections 172 to 188 of Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. 4. Prosecution case is that in violation of directions of the High Court not to cause obstruction, petitioners took out a procession through the Public road, on 19.1.2003 at about 11.45 a.m causing obstruction to the traffic and public and they under the leadership of the first petitioner proceeded along Chittoor road and Valanjambalam and caused obstruction to the traffic as well as pedestrians and thereby committed offences under Sections Crl.M.C No.4103 OF 2009 3 143,147, 149,188 and 283 of IPC. Therefore, what is alleged is that in disobedience of the orders of this court, a procession was carried out by the first petitioner along with the other petitioners and hence an offence under Section 188 of Indian Penal Code is attracted. Section 188 of Indian Penal Code provides that whoever, knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act or to take interim order with certain property in his possession or under his management, disobeys such direction shall if such disobedience causes or tends to cause danger to human life, health or safety or causes or tends to cause a riot or affray, shall or punishable for the sentence. If that be so, the learned Magistrate could not have taken cognizance of the said offence except on a complaint filed by such public servant or some other public servant to whom he is administratively subordinate. Admittedly, there was no order promulgated by a public servant in this case. As per the charge it is the order or this court which was disobeyed. If that be treated as an order promulgated then cognizance can be taken only on a complaint filed by an officer authorized by this Court. As no complaint was filed and cognizance Crl.M.C No.4103 OF 2009 4 was taken on a final report submitted by the police officer under Section 173(2) of Criminal Procedure Code, which can not be treated as complaint as defined under Section 2 (d) of the Code of Criminal Procedure, the cognizance taken for the offence under Section 188 of the Code of Criminal Procedure can only to be quashed. 5. Section 283 of Indian Penal Code provides that whoever, by doing any act, or by omitting to take order with any property in his position or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees. Therefore in order to attract an offence under Section 283 IPC the accused must have done an act or omitted to take order with any property in his possession causing danger or obstruction or injury to any person in any public way or public line of navigation. The only allegation is that petitioners lead a procession along the public road. There is no case that the procession was even turned violent. Though it is alleged that by such procession the traffic was obstructed, no witness was even cited to show that he or anybody else was obstructed or any danger was caused. In such circumstance even if petitioners are to be tried for the offence under Crl.M.C No.4103 OF 2009 5 Section 283 of Indian Penal Cod, there is no likelihood of a successful prosecution. If that be so, the trial would result only in unnecessary waste of valuable time of the Court. In such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed and C.C.No.2625/03 on the file of Judicial Magistrate of First Class -II Ernakulam is quashed. M.SASIDHARAN NAMBIAR,JUDGE. mns