IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.MC.No. 888 of 2005(A) ----------------------------------- ST.2638/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI ............................................. PETITIONER(S)/ACCUSED: ------------------------------------- K.BALAKRISHNAN, DEPUTY SUPERINTENDENT OF POLICE, SSB, KANNUR, KANNUR. BY ADV. SRI.P.T.MOHANKUMAR SMT.ARLISS TRENCY ANTONY RESPONDENT(S)/COMPLAINANT & STATE: ------------------------------------------------------------- *1. THE JUDICIAL I CLASS MAGISTRATE, IDUKKI. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. *THE NAME OF FIRST RESPONDENT JUDICIAL IST CLASS MAGISTRATE, IDUKKI IS STRUK OFF FROM PARTY ARRAY AS PER ORDER DATED 28-2-2005. PUBLIC PROSECUTOR SRI.B.VINOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.888 OF 2005 ------------------------------------------ Dated 30th July 2009 O R D E R Petitioner is the first accused in S.T.2638/2003 on the file of Judicial First Class Magistrate, Idukki. Proceedings were taken suo motu by the learned Magistrate under Section 41(d) of Kerala Police Act for the reason that first accused the Superintendent of Police (Rural), Kozhikode, petitioner, the second accused and third accused the Circle Inspector of Police, Payyoli who was in charge of the station, when petitioner was on leave, committed offence under Section 41(d) of Kerala Police Act, on their failure to execute the non bailable warrant issued against M.I.Baby, Sub Inspector of Police, Vatakara, the accused in C.C.17/1999 by the court. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against him. 2. First accused filed M.C.5582/2004 for the same relief. As per order dated 8/9/2004 the case as against him was quashed. Third accused filed Crl.M.C.1265/2005. As per order dated 16/5/2005, the CRMC 888/05 2 case as against him was also quashed. What remains is only the case as against the petitioner. 3. Petitioner was the Circle Inspector of police, Vatakara. Case as against him could only be for non execution of the non bailable warrant issued by the learned Magistrate in C.C.17/1999, to produce the accused M.I.Babu and Sub Inspector of Police on 5/9/2003. Said non bailable warrant was returned with a report seeking time stating that Sub Inspector is on medical leave and is not available at his residence. Report submitted by the third accused and the show cause notice issued later establish that petitioner was on commuted leave with effected from 6/9/2003 onwards. Order of the learned Magistrate shows that cognizance was taken against petitioner for the failure to execute the warrant on 5/9/2003. As petitioner was on commuted leave from 6/9/2003 onwards he cannot be prosecuted for the offence especially when first accused to whom the warrant to be executed was issued stands discharged. In such circumstances, when the case as against accused 1 and 3 are already quashed, on the facts it cannot be said that petitioner the CRMC 888/05 3 Circle Inspector of Police till 6/9/2003 committed the offence. Hence case as against petitioner only can be quashed. Petition is allowed. S.T.No.2638/2003 on the file of Judicial First Class Magistrate, Idukki is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.