IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.MC.No. 767 of 2007() ------------------------------------ ST.NO.1713/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,PALA. ... PETITIONER(S): ACCUSED: ------------------------------------------ THOMAS JOSEPH, S/O THOMAS, NILACKAPILLIL, KOLLENKODE P.O., CHITTOOR TALUK, PALGHAT DIST. BY ADV. SRI. P.BABU KUMAR RESPONDENT(S): STATE: -------------------------------------- S.I.OF POLICE, PALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. B.VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K. HEMA, J. ```````````````````````````````````````````````````` Crl. M.C. No. 767 OF 2007 A ```````````````````````````````````````````````````` Dated this the 7th day of September, 2009 O R D E R Petition filed under section 482 Cr.P.C. to quash the proceedings in S.T. No.1713/2006. 2. A petty case was charge sheeted against the petitioner for offence under section 51(a) of the Kerala Police Act('the Act' for short). As per the allegations, on 26.10.2006 at about 7.30 PM, at Kudakkachira junction, the petitioner, after being drunk, was found behaving in a disorderly manner, to the annoyance of the public, without being able to take care of himself. 3. Learned counsel appearing for petitioner submitted that after the charge sheet was filed, a complaint was given to the Superintendent of Police as Annexure-A1, since a false case is instituted against the petitioner. Actually, between the petitioner and his brother, several cases are pending and the police has charge sheeted the case only because of the Crl.M.C.767/07 : 2 : influence of the petitioner's brother, who was on enimical terms with him because of the civil case pending against him. According to learned counsel for petitioner, the limited prayer now in this petition is to direct the Superintendent of Police to conduct an enquiry into Annexure-A1 complaint. 4. On going through the petition and the reliefs sought for in the petition, I find that there is no request made by the petitioner for a direction to the Superintendent of Police to conduct an enquiry into Annexure-A1 complaint. Therefore, no such order can be passed. Eventhough the petition can be dismissed on the basis of the submissions made by the learned counsel for the petitioner, I find from the prayer in the petition that the petitioner seeks to quash the proceedings in S.T.1713/06. 5. As per the allegations in the petty charge-sheet (Annexure-A2), the petitioner was found drunk and he was under the influence of liquor and was incapable of taking care of himself and he behaved in a quarrelsome manner, which Crl.M.C.767/07 : 3 : was offending to the public. On a reading of the medical certificate Annexure-A3, it is seen that the petitioner was found drunk and that he had consumed alcohol but he was not under the influence of alcohol on 26.10.2006 at about 8.30 PM. This itself belies the allegation in Annexure-A2 that accused was under influence of liquor. 6. Learned Public Prosecutor at this juncture would argue that under section 51(a) of the Kerala Police Act, it is not necessary that the accused is under the influence of alcohol. It is sufficient if the accused is found drunk and he was incapable of taking care of himself. A reading of section 51(a) of this Act would show that an offence under the said Section will be made out if any person, in a street or public place, is found drunk and is incapable of taking care of himself or if he behaves in a disorderly manner, under the influence of drink. There are two limbs for the offence: (1) if he is either found drunk and was incapable of taking care of himself or (2) if he behaves in a disorderly manner under the Crl.M.C.767/07 : 4 : influence of drink. Either of these can be proved to establish commission of offence under Section 51(a). Therefore, it is clear that as stated by learned Public Prosecutor, it is not necessary that the person must be under the influence of liquor to make out offence under Section 51(a). 7. Even if a person is not under the influence of drink, he may be liable for punishment under section 51(a) of the Act if he is found drunk and is incapable of taking care of himself. But, Annexure-A3 medical certificate will show that the petitioner was not under the influence of alcohol. He was only found drunk. So, the prosecution has to prove that the accused was incapable of taking care of himself to establish the offence under Section 51(a). 8. But, a reading of Annexure-A3 shows that eyes, pupils, ears, gait, reflexes, etc. of the accused were tested and everything was reported to be normal. The character of speech was normal, he had self-control, handwriting was normal, muscular co-ordination was present. In the light of Crl.M.C.767/07 : 5 : the above facts stated in medical certificate, it cannot be said that he was incapable of taking care of himself. If a person is incapable of taking care of himself, his gait will not be normal. There will be some other indication in the medical report to infer that he was incapable of taking care of himself. But, there is absolutely nothing in the medical report to presume that accused was incapable of taking care of himself. 9. There is only a bare allegation in the complaint that accused was unable to take care of himself. But, in what exact manner, he was found unable to take care of himself at the place is not mentioned in the charge sheet. It can also be seen that there is an allegation that petitioner was under the influence of liquor, as per Annexure-A2 charge-sheet, but medical report does not support the same. That apart, though an allegation is made that petitioner was found behaving in a quarrelsome manner, nothing is stated in charge-sheet whether any overt act was committed by accused or any statements were made by him etc. A mere allegation that Crl.M.C.767/07 : 6 : accused behaved in quarrelsome manner is not sufficient to presume that he, having drunk, was incapable of taking care of himself. 10. In such circumstances, the offence under section 51(a) is not prima facie attracted in this case. If the proceedings are allowed to continue, I am of view that it will result in abuse of process of court. In this connection, it is also relevant to note that petitioner along with one of his brothers gave a complaint to the Superintendent of Police that this is a false case foisted against him and his brother, when petitioner had visited his mother in the Tharavadu house and another brother who is an advocate came there in an autorikshaw and called the police and police party came to the house and at the instance of his brother, police forcibly took petitioner and his brother to the police station and false case was change sheeted against him and his brother, as per two charge sheets. Any way, I find that in the interest of justice and to prevent abuse of process of court, the Crl.M.C.767/07 : 7 : proceedings have to be quashed, especially since Annexure- A2 does not reveal any act constituting offence under Section 51(a) of the Act. 11. In the result, the following order is passed:- All further proceedings initiated pursuant to Annexure-A2 in S.T.No.1713/2006 before the Judicial First Class Magistrate Court, Pala are quashed. Petition is allowed. Sd/- (K. HEMA, JUDGE) aks // True Copy // P.A. To Judge