IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 Crl.MC.No. 4056 of 2010() ------------------------------------ C.P.28/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANASSERRY. RIME NO.403/2009 OF CHANGANASSERRY POLICE STATION. .................. PETITIONER/ACCUSED NO.6 ------------------------------------------- MUHAMMED, AGED 36 YEARS, S/O. MARAKKAR, RESIDING AT NEDUNGATTUKUDI VEEDU, CHELAMATTOM VILLAGE, CHELAMATTOM KARA, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.R.O.MUHAMED SHEMEEM RESPONDENTS/DEFACTO COMPLAINANT -------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, CHANGANASSERRY POLICE STATION, CHANGANASSERRY, PIN-686 101. 2. SAVAD MOULAVI, AGED ABOUT 45 YEARS, S/O. ABDUL HAMEED, BISMI HOUSE, ADUVASSERY SOUTH, KUNNUKRA VILLAGE, PARAVOOR TALUK, ERNAKULAM DISTRICT-683 524. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 & R3 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4056 of 2010 -------------------------- ORDER Petitioner, the sixth accused in C.P.No.28/2010 on the file of Judicial First Class Magistrate's Court, Changanassery, taken cognizance for the offences under Sections 20 read with Section 27 of Arms Act and Section 399 of Indian Penal Code on Annexure-7 final report, filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that he is not at all involved in the offences committed by the other accused and continuation of the proceedings against him is only an abuse of process of the court. 2. Prosecution case is that on the early morning of 16.6.2009 at about 1 a.m., KL-32/3636 Red Safari Car was found parked on the side of the road near Vadakkekara Railway Cross and when the patrol party, headed by Sub Inspector of Police, Changanassery, inspected the vehicle, five accused CRMC 4056/10 2 found in the car tried to run away and four of them were caught hold of and on questioning them, it was revealed that they belong to Pala and were returning from Thiruvalla. As there was some trouble to the car, it was stopped. On getting suspicion, when the vehicle was inspected, it was found that they were carrying arms in the car. Therefore, they were arrested and the arms and the vehicle were seized. Crime No.403/2009 was suo motu registered. Petitioner, claiming to be the owner of the vehicle, filed a petition before the Magistrate under Section 451 of Code of Criminal Procedure. It was dismissed. Petitioner challenged that order before this Court in Crl.M.C.No.3383/2009. By Annexure-6 order, the order of the learned Magistrate was quashed and Magistrate was directed to re-hear the petition and pass appropriate order. Case of the petitioner is that registered owner of the vehicle was Bijoy.M.K. and under Annexure-1 agreement, petitioner purchased the same and CRMC 4056/10 3 therefore, he is entitled to interim custody of the vehicle. It is, thereafter, petitioner was implicated as the sixth accused. Case of the petitioner is that there was absolutely no material to prove the complicity of the petitioner and he was implicated based on Annexure-3 complaint filed by Sawad Moulavi, who claims ownership over the vehicle, which cannot be sustained on the materials available and statement of the said Moulavi also reveal that car was being given for hire and when accused hired the vehicle and used for carrying arms without the knowledge or consent of the petitioner, he cannot be prosecuted. Therefore, the case against the petitioner is to be quashed. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Prosecution case itself is that vehicle KL- 32/3636 was found parked on the side of the road at about 1 a.m. on 16.6.2009 with accused 1 to 4 and fifth accused ran away from the car and the car was CRMC 4056/10 4 seized. The registered owner of the vehicle is admittedly Bijoy.M.K. Though Moulavi claimed ownership over the vehicle, based on an oral agreement from Bijoy on 26.9.2007, as is clear from Annexure-1 agreement, Bijoy had sold the vehicle not to Moulavi but to the petitioner. In such circumstances, based on the statement of Moulavi, petitioner cannot be prosecuted. Assertion of the learned counsel appearing for the petitioner that there is absolutely no material to prove that arms were carried by accused 1 to 5 in that vehicle on 6.6.2009, without the knowledge or consent of the petitioner was not disputed by the learned Public Prosecutor after perusing the case diary. In such circumstances, when there is absolutely no material to prove that the other accused were travelling in that vehicle carrying arms, with the knowledge of the petitioner that they are in possession of the arms, when it is the case that vehicle used to be given on hire, petitioner cannot be prosecuted for CRMC 4056/10 5 carrying arms by the persons who had taken the car on hire. In such circumstances, continuation of the proceedings against the petitioner is only an abuse of process of the court and hence, to secure justice, it is necessary to quash the proceedings as sought for. Petition is allowed. Cognizance taken in C.P. No.28/2009 on Annexure-7 final report in Crime No. 403/2009 of Changanassery Police Station against the petitioner/sixth accused, is quashed, making it clear that case can be proceeded against the other accused. 9th December, 2010 (M.Sasidharan Nambiar, Judge) tkv