IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.MC.No. 2800 of 2008() ------------------------------------ CRIME NO.346/2004 OF KURUPPUMPADY POLICE STATIION. ...................... PETITIONER/ACCUSED --------------------------------- GEORGE, AGED 54 YEARS, S/O.VARGHESE, CHUNDATHU HOUSE, PANIYERI KARA, KOMBANADU VILLAGE. BY ADV. SRI.K.C.SURESH, SRI.PREMCHAND R.NAIR. RESPONDENT/COMPLAINANT --------------------------------------------- 1. CIRCLE INSPECTOR OF POLICE, KURUPPAMPADY. 2. SOMAN, AGED 34, S/O.BALAN, KANDATHIL PURAYIDOM, KOMBANADU KARA, KOMBANADU VILLAGE. R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR, J. ---------------------------------- Crl.M.C.No. 2800 OF 2008 ------------------------------------- Dated this the 3rd day of September, 2010 O R D E R ~~~~~~~~ Petitioner, the sole accused in ST.8525/2004 on the file of Judicial First Class Magistrate Court, Perumbavoor, filed this petition to quash the cognizance taken against him for the offences under Section 279 and 337 of the I.P.C. on Annexure- A4 final report. Second respondent was originally the sole accused under Annexure-A1 final report submitted by the Sub Inspector. Annexure-A1 report shows that based on the investigation Sub Inspector laid the charge alleging that second respondent was riding autorickshaw KL-7-56373 from west to east on 10.10.2004 at about 4.30 p.m rashly and negligently so as to endanger human life and by such driving hit on motor cycle KL-7/AF 5081 and caused injuries to its rider, the petitioner herein. The first charge witness in Annexure-A1 final report is the petitioner herein and the second charge witness is an eyewitness. The crime was registered on the first information furnished by the petitioner and recorded by the head constable of Kurupapady police station, wherein the Crl.M.C.No.2800/2008 2 petitioner alleged that he sustained injury when the autorickshaw hit on the motor cycle. Annexure-A4 final report shows that when offences shown in the final report was taken cognizance and the case was pending before the learned Magistrate, a complaint was filed by the original accused before the Superintendent of Police and a further investigation was conducted by the Circle Inspector, which revealed that the incident occurred due to the rash and negligent driving of the motor cycle driven by the petitioner. In the light of that materials the original accused, Soman, was shifted as charge witness and the original charge witness, namely, the petitioner was shifted as the accused. The learned Magistrate as per order dated 17.4.2008 accepted the second final report and released the original accused and implicated petitioner as the accused. It is challenged in this petition filed under Section 482 of the Code of Criminal Procedure. 2. As it is contended that no further investigation was conducted with the permission of the Court, Judicial First Class Magistrate was directed to ascertain whether the factum of a Crl.M.C.No.2800/2008 3 further investigation is being conducted was reported to the Magistrate and whether before accepting the further report notice was given to the petitioner, who was the original defacto complainant. The learned Magistrate reported that the records of the case do not reveal that any such report that further investigation is being carried out was reported to the court and no notice was issued to the original defacto complainant before the further final report was accepted. 3. Though Sub Section 8 of Section 173 of Code of Criminal Procedure enables the investigating officer to conduct further investigation in respect of an offence, if he receives material or evidence either oral or documentary, the investigating officer is bound to report the matter to the court before proceeding to investigate the case further. Report of the learned Magistrate shows that not only formal permission to investigate the case was not sought for, the factum of further investigation was not even reported to the court. If that be so, learned Magistrate could not have accepted the further report as has been done in this case. More over, Annexure-A4 report does Crl.M.C.No.2800/2008 4 not reveal on what basis investigating officer has changed his conclusions. Annexure-A1 final report shows that based on the statement of the petitioner and an eyewitness, the charge was submitted against the original accused. Annexure-A4 report shows that based on the statement of the Autorickshaw driver and a person, who was allegedly in the autorickshaw when the incident occurred, it is stated that petitioner committed the offence. But, nothing is stated about the statement of the eyewitness earlier acted upon in the Annexure-A1 final report. It is not known, how the statement of the original accused could be accepted as a fair report based on a representation made by that accused before the Superintendent of Police. 4. I find no justified basis for the police to change the accused as has been done by order dated 17.4.2008 based on Annexure-A4 report. The learned Magistrate could not have taken cognizance on the final report, as further investigation was not conducted after reporting to the court or with the permission of the court. In such circumstances, cognizance taken against the petitioner by order dated 17.4.2008 based on Annexure-A4 Crl.M.C.No.2800/2008 5 final report can only be quashed. I do so. Crl.M.C. is allowed. S.T.No.8525/2004 on the file of the Judicial First Class Magistrate is quashed. (M.SASIDHARAN NAMBIAR, JUDGE) ps/04/9