IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 Crl.MC.No. 1021 of 2008() ------------------------- ST.142/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... PETITIONER(S): ------------------------ T.V. VISWAMBHARAN, FOREST RANGE OFFICER, SOCIAL FORESTRY DIVISION, KOTTAYAM. BY ADVS. MR.P.N.PURUSHOTHAMA KAIMAL, MR.K.R.RADHAKRISHNAN NAIR. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY THE DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. RAJU, S/O. GOPALAN, KRISHNA VILASAM, MAMADIKKANAM, RAJAKKAD VILLAGE, MUNNAR. R1 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1021 OF 2008 =========================== Dated this the11th day of December,2009 ORDER This petition is filed under section 482 of the Code of Criminal Procedure to quash Annexure A2 complaint as well as the cognizance taken by Judicial First Class Magistrate, Adimali for the offence under section 166 of Indian Penal Code. As per CMP 1331/2006 the Jeep KL6.4762 seized in O.R.36/2006 was granted interim custody by Annexure A1 order dated 19.10.2006 to the second respondent complainant. Annexure A2 complaint was filed before the Magistrate, by the second respondent, stating that eventhough petitioner was in the office on 26.10.2006, 30.10.2006, 2.11.2006 and 4.11.2006 and second respondent went their to get the vehicle released, he was sent back for the reason that petitioner is not there in the office. It is alleged that on 6.11.2006 at 9.30 a.m he again went to the office of the petitioner and then met the petitioner to be handover the order of the Magistrate directing to release the vehicle. Petitioner read the order and threw it on the second respondent stating that Magistrate has no jurisdiction to release the Crl.M.C.1021/2008 2 vehicle and if necessary second respondent can approach the court. Alleging that petitioner purposely disobeyed the order when as public servant he is bound to obey the same, the complaint was filed. It was taken cognizance by the learned Magistrate. This petition is filed under section 482 of the Code of Criminal Procedure to quash that order. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Though notice was issued to the second respondent he did not appear. 4. Learned counsel argued that in Annexure A2 complaint the name of the petitioner is not shown and instead the accused is shown as the Forest Range Officer, Devikulam and on the date when the complaint was filed, he was not the Forest Range Officer and therefore learned Magistrate should not have taken cognizance of the offence as against the petitioner. It is also submitted that petitioner consulted the superior officers to decide whether Annexure A1 order is to be challenged and due to the delay in getting instructions the vehicle was not immediately released and it was not wilful disobeyance of any order and therefore no offence is committed. It is also argued that without sanction under section 197(1), learned Magistrate should not have taken cognizance of the offence. Crl.M.C.1021/2008 3 5. When the petition is filed under section 482 of the Code of Criminal Procedure to quash the complaint, the allegations in the complaint is to be taken as correct and it is to be decided whether on those allegations, ingredients of an offence is made out or not. Unless there are other material to prove that the complaint is filed for extraneous reasons or it is an abuse of process of court. Petitioner has no case that the vehicle was released immediately after issuance of Annexure A1 order or even on 6.11.2006, when the second respondent allegedly approached the petitioner. When the complaint shows that eventhough petitioner was in the office, second respondent was sent back for more than three occasions under the guise that he is not in the office and on the fourth occasion he could meet the petitioner and then petitioner threw the order at the face of the second respondent stating that Magistrate has no jurisdiction to release the vehicle, it cannot be said that ingredients of an offence is not attracted. The question whether second respondent had approached previously, whether petitioner had thrown the order as alleged by the second respondent, are all matters for evidence and cannot be disbelieved at this stage. 6. Though name of the petitioner as such was not shown in the complaint, the complaint is filed against the Forest Range Officer, Devikulam on 6.11.2006 and subsequent Range Crl.M.C.1021/2008 4 Officer by Annexure A3 communication, informed the Magistrate that it was not P.Satheesan the subsequent Range Officer but the petitioner who was the Range Officer on 6.11.2006 and therefore petitioner was implicated. Petitioner has no case that he was not the Range Officer on 6.11.2006. In such circumstances, on that ground also complaint cannot be quashed. 7. Being a public servant who is bound to obey the orders of the Magistrate and when by Annexure A1 order Magistrate directed to release the vehicle seized in the case to the second respondent, refusal to release the same, questioning the authority of the Magistrate to release the vehicle cannot be said to be an act done discharge of his official duty. If so, sanction under section 197(1)of Code of Criminal Procedure is necessary to prosecute the petitioner. In such circumstance, the case cannot be quashed. Petitioner is at liberty to raise all the contentions before the learned Magistrate. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006