IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 WP(C).No. 10233 of 2007(R) ------------------------------------- CC. 627/2001 JUDICIAL IST CLASS MAGISTRATE COURT, KOLLAM. ........ PETITIONER(S): -------------------- REENA ANIL, W/O.ANIL ISSAC, AGED 41 YEARS, L BATHEL, CONTONEMENT EAST WARD, A.G.NAGAR, OPPOSITE UPASANA HOSPITAL, KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RENJITH KUMAR, THONNALLOOR THOTTATHIL, ANECHUTTAMUKKU, NJARACKAL CHERRY, PERINAD P.O., THRIKKARUVA VILLAGE, KOLLAM DISTRICT 3. K.S.KARUNAKARAN PILLAI, "JAYASREE BHAVAN", PERINAD P.O., THRIKKARUVA VILLAGE, KOLLAM DISTRICT. R1 BY GOVT. PLEADER SRI.SABU SREEDHARAN R3 BY ADV. SRI.RAJA VIJAYARAGHAVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10233/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NUMBEREDAS 803/2000 DTD. 8.8.2000. P2:- COPY OF THE WOUND CERTIFICATE ISSUED TO THE PETITIONER. P2(a):- COPY OF THE WOUND CERTIFICATE DTD. 6.8.2000 ISSUED TO PETITIONER'S DAUGHTER. P3:- COPY OF THE MAHAZAR DTD. 30.1.2001 PREPARED BY THE POLICE. P4:- COPY OF THE SCENE MAHAZAR DTD. 8.8.00. P5:- COPY OF THE FINAL REPORT DTD. 5.2.2001 IN CC. 627/2001 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLLAM. P6:- COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 2 AND 3 IN OP(MV) 560/2001. P7:- COPY OF THE PETITION DTD. 24.1.02. P8:- COPY OF THE UN REPORT DT. 14.6.2004. P9:- COPY OF THE STATEMENT DTD. 14.6.04. FILED BY THE POLICE. P10:- COPY OF THE ORDER DTD. 18.9.2006 IN CC. 627/01 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT – I, KOLLAM. P11:- COPY OF THE AMVI REPORT INCC 467/2000 OF JUDICIAL FIRST CLASS MAGISTRTE COURT, KOTTARAKARA. TRUE COPY P.S. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- W.P.C.NO.10233 OF 2007 --------------------------------------------- Dated 21st December, 2010 JUDGMENT Petitioner is the de facto complainant in C.C.627/2001 on the file of Judicial First Class Magistrate's Court-I, Kollam. Learned Magistrate has taken cognizance of the offences under Sections 297, 337 and 338 of Indian Penal Code and Section 34(a) and (b) of Motor Vehicles Act on the final report submitted by Sub Inspector of Police. Prosecution case was that on 6/8/2000 at about 7 p.m, second respondent the accused drove Tata Sumo car No.KL-2J-684 in a rash and negligent manner, so as to endanger human life, along Kollam-Chengotta public road from west to east and hit against scooter KL-01-5214 which was driven by the petitioner Wpc 10233/07 2 with his daughter as pillion rider, near Kadappakada Muslim Mosque and caused fracture of the left leg of the petitioner and injuries on his daughter and thereby committed the offences. After the second respondent appeared and pleaded not guilty, investigating officer sought permission to investigate the case further under Section 173(8) of Code of Criminal Procedure. By order dated 17/6/2002, permission was granted for further investigation. After completing further investigation, Ext.P8 further report was submitted under Section 173(8) of Code of Criminal Procedure. Learned Magistrate by Ext.P10 order accepting the said report discharged the second respondent. Petition is filed under Article 227 of Constitution of India to quash Exts.P8 and P10 contending that proper investigation was not conducted and the Wpc 10233/07 3 petitioner was not given opportunity to oppose Ext.P8 further report. It is contended that as no notice was served on her on Ext.P8, learned Magistrate should not have discharged the second respondent. 2. As per order dated 26/3/2007, based on the submission of the counsel appearing for the petitioner that the petitioner was not given notice regarding Ext.P8 further report, Judicial First Class Magistrate was directed to report whether any notice was served on the petitioner before accepting Ext.P8 report by Ext.P10 order. Learned Magistrate submitted report dated 3/4/2007 that records show that no notice was served by the Court on the petitioner, after final report under Section 173(8) of Code of Criminal Procedure was submitted. 3. Learned counsel appearing for the Wpc 10233/07 4 petitioner, respondents 2 and 3 and learned Public Prosecutor were heard. 4. Report submitted by the learned Magistrate establishes that case of the petitioner that she was not served with any notice about the submission of Ext.P8 further report, by the Court is established. Though learned counsel appearing for respondents 2 and 3 submitted that Ext.P9 would show that notice was sent to the petitioner, Ext.P9 only shows that notice sent to the petitioner, was returned on the report that she had taken leave and joined her husband, who is working abroad and would return only by April, 2005. No further notice was sent by the police. Notice to be served on the de facto complainant before accepting the final report is by the Court and not by the Police as declared by the Honourable Supreme Court in Union Public Service Wpc 10233/07 5 Commission v. S.Papaiah (1997 (7) SCC 614). Learned Magistrate should not have accepted without notice to the petitioner and granting opportunity to be heard. Ext.P8 report was submitted after further investigation under Section 173(8) of Code of Criminal Procedure. It was accepted without serving notice on the de facto complainant and granting him an opportunity to file objection to the final report or to file a protest complaint. Hence Ext.P10 order, accepting Ext.P8 final report can only be quashed. Petition is allowed. Ext.P10 order passed by Judicial First Class Magistrate's Court-I, Kollam accepting Ext.P8 report, without serving notice on the petitioner, and the order discharging second respondent is quashed. As petitioner has already obtained copy of Ext.P8 report, I do not find it Wpc 10233/07 6 necessary now to issue a direction to the Magistrate to issue a copy of Ext.P8 to the petitioner. C.C.627/2001 is restored to file. Petitioner and respondents 2 and 3 are directed to appear before Judicial First Class Magistrate's Court-I, Kollam on 16/2/2011 at 11 a.m. Petitioner to file objections, if any to Ext.P8 report or a protest complaint on that day. Learned Magistrate shall hear the petitioner, Assistant Public Prosecutor as well as the accused before accepting Ext.P8 report and pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.