IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Crl.MC.No. 3450 of 2010() ----------------------- CRIME NO. 816/2010 OF ERNAKULAM TOWN SOUTH POLICE STATION ................ PETITIONER / ACCUSED : -------------------------------------- M.A.JOSEPH, S/O. M.O.AUGUSTINE, MANAVALAN HOUSE, AMULYA STREET, BANERJEE ROAD, ERNAKULAM. BY ADV. SRI. SOORAJ T. ELENJICKAL RESPONDENT / COMPLAINANT : ------------------------------------------------ STATE OF KERALA, THROUGH SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J. MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.3450 of 2010 -------------------------------------- Dated this the 26th day of May, 2011. ORDER Petitioner is accused in Crime No.816 of 2010 of Ernakulam Town South Police Station and S.T.No.1548 of 2010 of the court of learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. He is facing trial for offences punishable under Sections 184 and 185 of the Motor Vehicles Act (for short, “the Act”). It is alleged that on 21.05.2010 at about 8.40 p.m. petitioner was seen driving a car along the public road in a zig-zag manner likely to cause accident, had consumed alcohol at the time of driving and thereby committed offences as alleged. Learned Additional Chief Judicial Magistrate took cognizance of the said offences on the final report submitted by the Police. The Sub Inspector, Ernakulam Town South Police Station registered a case and after investigation submitted final report for offences as above stated. Cognizance taken is under challenge in this proceeding. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Learned counsel submitted that offences punishable under Sections 184 and 185 of the Act being non-cognizable in character, the Police could not have registered and investigated it without complying with Section 155 (2) of the Code of Criminal Procedure (for short, “the Code”), no such permission was obtained from the jurisdictional Magistrate and hence initiation of Crl.MC No.3450/2010 2 proceeding, investigation and submission of final report are illegal. Reliance is placed on the decision in Mahaboob v. State of Kerala (2011 (2) KHC 261). It is further contended that so far as offence punishable under Section 184 of the Act is concerned, there is not even an allegation in the final report that driving was in such a manner that it was dangerous to the Public. Further contention is that even the charge under Section 185 of the Act cannot stand since the test allegedly conducted is not shown to be one approved by the Central Government in the official Gazatte and at any rate as, such test was conducted after arrest of petitioner being illegal in view of Section 203(2) of the Act. Learned Public Prosecutor submitted that even if the decision in Mahaboob v. State of Kerala (supra) is to be applied the matter can only go back for fresh proceeding after getting permission from the jurisdictional Magistrate under Section 155(2) of the Code. 3. So far as initiation of the proceeding, investigation and submission of final report are concerned, in the decision referred supra it is held that offences punishable under Section 184 and 185 of the Code being non- cognizable in character though the Police Officer is given limited power under certain circumstances to arrest the offender the Police Officer has to get permission of the jurisdictional Magistrate under Section 155(2) of the Code to investigate the case and submit final report. Since that admittedly has not been done, initiation of the proceeding, investigation and submission of final report can only be said to be illegal. Crl.MC No.3450/2010 3 4. So far as the argument that to attract offence under Section 184 of the Act is concerned, there is no allegation that driving of vehicle dangerous to the public, having regard to the allegations made in the First Information Report and final report and I do not think that it is necessary to entertain that argument in this proceeding. 5. Next argument is that under Section 203(2) of the Act, arrest of the offender could only be after the test is conducted whereas in the present case even before the test was conducted petitioner was placed under arrest. Assuming that arrest is illegal, I am not inclined to think that would cut the root of the prosecution case. 6. Another argument is that alcho test is not shown to be a device approved by the Central Government in the official Gazatte. That is a contention which the court has to consider at the appropriate stage. 7. The last argument is regarding restriction on conviction under Section 209 of the Act. Even if the argument is accepted, Section 209 of the Act does not bar prosecution but only says that a person prosecuted for an offence punishable under Section 183 or Section 184 of the Act shall be convicted only in the circumstances stated therein. Crl.MC No.3450/2010 4 8. Having heard learned counsel for petitioner and the learned Public Prosecutor I am inclined to think that for the reason that the procedure adopted by the Investigating Officer is illegal for non-compliance of Section 155(2) of the Code, cognizance taken against petitioner is liable to be set aside. Resultantly this Criminal Miscellaneous Case is allowed. Cognizance taken by the learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam in S.T.No.1548 of 2010 based the final report submitted by Ernakulam Town South Police in Crime No.816 of 2010 is set aside subject to the right of the Police to proceed in the manner directed in Mahaboob v. State of Kerala (supra). THOMAS P.JOSEPH, Judge. cks