IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 Crl.MC.No. 3705 of 2011() ------------------------- CC.1090/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... PETITIONER(S)/ACCUSED :- -------------------------------------- RADHAKRISHNAN, AGED 48 YEARS, S/O.CHELLAPPAN NAIR, 'KRISHNA KRIPA', PARAKODU P.O., EZHAMKULAM, PATHANAMTHITTA DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S)/COMPLAINANT :- -------------------------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, ENATHU POLICE STATION, PATHANAMTHITTA DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt Crl.M.C.No.3705 of 2011 APPENDIX Petitioner's Exhibits :- Annexure A :- Copy of the FIR in crime No.317/2008 registered by the respondent. Annexure B :- Copy of the accident Register-Cum-Wound certificate of the petitioner dated 15.10.2008 issued by the General Hospital, Adoor. Annexure C :- Copy of the report dated 10.7.2010 submitted before the Judl. First Class Magistrate Court, Adoor in crime No.317/2008. Annexure D :- Copy of the final report Dated 12.7.2010 filed before the Judl. First Class Magistrate Court, Adoor. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3705 of 2011 ----------------------------------- Dated this the 15th day of November 2011 O R D E R Petitioner is the accused in Crime No.317/2008 of Enathu Police Station, Pathanamthitta District. The allegation is that, on 15.10.2008 at 00.30 A.M., while the petitioner, who was the Head Constable in the above Police Station, was driving the police jeep along with the de facto complainant, when the Assistant Sub Inspector of Police and others were in the police jeep (who were on patrol duty), the jeep went off the road and hit an electric post and also a compound wall causing damage to the electric post and also to the compound wall. One of the injured persons, who is stated to be the accused himself lost teeth also in the said incident. Others also sustained injuries. After conducting the investigation, final report was filed alleging commission of offences under Secs.279 and 337 of IPC and Sec.185 of M.V.Act. It is seen that since one tooth was also lost, it is not sure whether the Crl.M.C. No.3705 of 2011 -: 2 :- offence under Sec.338 is also involved. 2. Learned counsel for the petitioner submits that there is absolutely no material to sustain the final report filed in this case. The learned Public Prosecutor would resist that submission and submits that there are sufficient materials to proceed against the accused. It is also submitted that the KSEB has also initiated action against the accused and the department since the electric post was damaged in the incident. 3. It is argued by the learned counsel for the petitioner that no breath analysis test was conducted in order to attract the offence under Sec.185 of the M.V.Act. Sec.185 says that the driver must have in his blood, alcohol exceeding 30mg. per 100ml. of blood detected in a test by a breath analyser or is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle. The learned counsel further submits that the test prescribed under Secs.203 and 204 of the M.V.Act also have not been conducted in this case and therefore, the charge Crl.M.C. No.3705 of 2011 -: 3 :- under Sec.185 of the M.V.Act is unsustainable. 4. In the copy of the wound certificate produced in this case which relates to the petitioner herein (who also sustained injuries in the incident) it is noted; “breath smells alcohol”. Hence, the learned Public Prosecutor would submit that the question as to whether there is sufficient material to attract the offence under Sec.185 of the M.V.Act is a matter to be considered by the learned Magistrate. Learned counsel for the petitioner would submit that the statements of the witnesses recorded by the Investigating Officer do not show that there was rashness or negligence in driving the vehicle by the petitioner. In the final report, it is mentioned that the accused after consuming liquor drove the vehicle in a rash or negligent manner endangering human life and thus the vehicle hit the electric post etc. 5. The copy of the scene mahazar produced will show that the compound wall was also damaged to a length of 3m 63cm and height of 1m 8cm. Further it is mentioned that the barbed wire fence was also damaged as the vehicle hit a Crl.M.C. No.3705 of 2011 -: 4 :- portion of the barbed wire fence. Other materials are also mentioned therein. The fact that the electric post was damaged is also mentioned in the scene mahazar. 6. Rashness or negligence is not something to be proved by the oral evidence alone. The fact that the vehicle was driven by the petitioner in this case is not in dispute. It can be seen from the mahazar that the vehicle went off the road and hit the electric post, compound wall, barbed wire fence etc. and damaged the same. It is tried to be explained stating that there was slight drizzling and so the vehicle happened to skid. It is in this connection, the fact that the accused had consumed alcohol while on duty also becomes relevant. According to the prosecution, that also is a circumstance to hold that the driver lost control because he was rash or negligent as he had consumed alcohol. Who all are the witnesses who have stated about the incident and whether the materials produced by the prosecution are sufficient to warrant a conviction is not something to be gone into in a petition filed under Sec.482 Cr.P.C. In the light of Crl.M.C. No.3705 of 2011 -: 5 :- the facts mentioned above, especially the facts noted in the scene mahazar, I find that the materials produced are sufficient to put the accused to trial for offences under Secs.279 and 337 IPC, if not under Sec.338 IPC. The other question that whether the offence under Sec.185 of M.V.Act is unsustainable is a matter to be considered by the trial court. In view of the fact that the entire case cannot be quashed in view of the facts stated above, the question as to the sustainability of the charge under Sec.185 of M.V.Act is left to be decided by the learned Magistrate himself. The learned Magistrate will dispose of the case untrammelled by the observations made in this order. I find no reason to quash the proceeding under Sec.482 of Cr.P.C. Hence, this Crl.M.C. is dismissed. N.K.BALAKRISHNAN, JUDGE. Jvt