IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRL.REV.PET.NO. 2150 OF 2009() ---------------------------------------------- CMP.2855/2005 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... REVN. PETITIONER(S): COMPLAINANT: -------------------------------------------------------- U.P.KASIM, S/O.UMMAR, UNNIYAPPANTEPURAKKAL HOUSE, NIRAMARATHU, UNNYAL. BY ADV. SRI.T.K.SAIDALIKUTTY SRI.A.A.ZIYAD RAHMAN SMT.ANITHA M.N. (EKM) SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.SHEENA SAMUEL RESPONDENT(S): ACCUSED AND ANOTHER: -------------------------------------------------------------- 1. R.JOSE, SUB INSPECTOR OF POLICE, TANUR. 2. A.K.BABU, CIRCLE INSPECTOR OF POLICE, TANUR. 3. THE STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2150 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of August, 2009 O R D E R -------------- This revision is in challenge of order dated 19.11.2008 in C.M.P. No.2855 of 2005 of the court of learned Judicial First Class Magistrate- I, Parappanangadi. Petitioner preferred a private complaint against two Police Officers. His case is that he was made an accused in Crime No.279 of 2004 of Tanur Police Station and in the course of investigation of that case Police seized the Jeep bearing No.KL-10/B- 6217 belonging to him. That Jeep was subsequently ordered to be released to him as per order of this Court. Consequent to that order learned magistrate directed release of the vehicle on 12.4.2005 to petitioner and accordingly that vehicle was released to him on 13.4.2005 at about 5.00 p.m. Petitioner took release of the Jeep from the compound of Tanur Police Station. At that time it was learnt that the Jeep was damaged due to its diesel/oil tank being filled with common salt. Petitioner alleged that the Police Officers whose names are mentioned in the complaint are responsible for the damage caused to the vehicle. Learned magistrate took cognisance of the offence and recorded statement of petitioner and his witnesses including the Assistant Motor Vehicle Inspector who had inspected the vehicle after CRL. R.P. No.2150 of 2009 -: 2 :- it was released to the petitioner. Exhibit C1 is the report of the AMVI and Ext.C2 is the report of the Advocate Commissioner. He has reported the damage allegedly caused to the Jeep. Learned magistrate vide the impugned order found that it is not shown that the Police Officers whose names are mentioned in the complaint committed the alleged act, Section 197 of the Code of Criminal Procedure (for short, “the Code”) is not complied with and accordingly dismissed the complaint obviously under Section 203 of the Code since learned magistrate himself conducted an enquiry under Sec.202 of the Code. That order is under challenge in this revision. 2. Heard counsel for petitioner and Public Prosecutor. Notice to respondent Nos.1 and 2 is dispensed with since the complaint was dismissed under Sec.203 of the Code. It is contended by learned counsel that dismissal of the complaint is not legal and proper. According to learned counsel learned magistrate ought to have taken cognizance against respondent Nos.1 and 2, Police Officers named in the complaint in whose custody the vehicle was during the relevant time. It is also contended that the alleged act is not part of official duty of respondent Nos.1 and 2. 3. It is not disputed that, as the materials are now available, CRL. R.P. No.2150 of 2009 -: 3 :- that it is not shown that it was respondent Nos.1 and 2 who committed the alleged mischief. But according to learned counsel in a situation like this where the vehicle was in the custody of respondent Nos.1 and 2 learned magistrate ought to have proceeded against them as prima facie it could be said that the mischief was committed by respondent Nos.1 and 2. But the principle of vicarious liability cannot be stretched to criminal liability unless it is specifically provided. At the same time court cannot and should not feel helpless in situation of this nature. Some materials are produced by petitioner to show that the Jeep while in the custody of Tanur police was damaged by putting common salt in its oil/diesel tank. Respondent Nos.1 and 2 are the Sub Inspector and Circle Inspector of Tanur Police during the relevant time. Section 202(1) of the Code provides that it is within the power of the magistrate to direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground to proceed. 4. This Court in Biju Purushothaman v. State of Kerala (2008(3) KLT 85) has stated that there is nothing to indicate that once the magistrate has conducted an enquiry into the case himself he cannot thereafter follow the next alternative to direct CRL. R.P. No.2150 of 2009 -: 4 :- investigation as referred to in Sec.202(1) of the Code. Therefore the mere fact that magistrate has conducted an enquiry by himself did not prevent him from directing an investigation as above stated. In the facts and circumstances of the case I am dealing with, I consider it necessary to meet the ends of justice that an investigation as referred to in Sec.202(1) of the Code is conducted as to who committed the mischief, if any. 5. Then the next question is as to who should conduct that investigation. Learned counsel for petitioner referred me to Rule 26 of the Criminal Rules of Practice (for short, “the Rules”) wherein it is stated that when the complaint is preferred against Police Officers it shall not be referred except in the manner stated therein, i.e., by a magistrate to a magistrate subordinate to him. This Court in Jessy Jacob v. State of Kerala (1998 (2) KLT 554) adverted to Rule 26 of the Rules and stated that such reference to the Police when the complaint itself is against Police Officers is not contemplated by the Rule. But this Court in Madhavan Nambiar v. Bharathan (1995 (1) KLT 591) held that it is within the power of the magistrate under Sec.202(1) of the Code to direct investigation by such other person as the magistrate thinks fit. In that case the order of learned CRL. R.P. No.2150 of 2009 -: 5 :- magistrate directing such investigation to be conducted by an Advocate was upheld. Any person found fit including an Advocate who is an Officer of the court can be directed to conduct the investigation referred to in Sec.202(1) of the Code. However, since that is a matter which the learned magistrate should consider and be satisfied about, I am not issuing any direction as to who should be directed to conduct the investigation referred to in Sec.202(1) of the Code. I make it clear that it is open to the learned magistrate to proceed as to who should be directed to conduct investigation without violating Rule 26 of the Rules stated above. 6. Learned magistrate has sated that compliance with Sec.197 of the Code is required as the seizure of the Jeep was in the course of discharge of official duties. In view of the order I am passing in this case that finding is also set aside. It will be open to the learned magistrate to consider that question at the appropriate stage after conducting the investigation referred to in Sec.202(1) of the Code if circumstances warranted and bearing in mind the offence alleged. In view of what I have stated above the order under challenge cannot be sustained, it is liable to be set aside and I do so. Resultantly, this revision petition is allowed. Order under CRL. R.P. No.2150 of 2009 -: 6 :- challenge is set aside and the matter is remitted to the court below for fresh disposal after conducting an investigation as referred to in Sec.202(1) of the Code untrammelled by the observations if any contained herein on the merit of the case . Petitioner shall appear in the court of learned Judicial First Class Magistrate-I, Parappanangadi on 7.9.2009. THOMAS P.JOSEPH, JUDGE. vsv