IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.MC.No. 558 of 2004() ------------------------ CC.357/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... PETITIONER: 1ST ACCUSED ----------------------- JACOB JOHN, AGED 40 YEARS, S/O. YOHANNAN, ALUVILA HOUSE, KARICKAM P.O., KOTTARAKARA, KOLLAM, NOW WORKING AS MANAGER, EXCISE DIVISION OFFICER, KOZHIKODE. BY ADV. SRI.SUNIL JACOB JOSE RESPONDENTS: COMPLAINANT/2ND ACCUSED: -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUAM. 2. RAGHU RAJAN, S/O. GANGADHARAN, MUNIPPEL PUTHENVEEDU, MAROOR, ENADINMANGALAM, ADOOR. 3. N.BABU, EXCISE GUARD O/O.EXCISE RANGE INSPECTOR, ADOOR. BY PUBLIC PROSECUTOR SHRI P.A.SALIM FOR R1 ADV. SRI.P.VIJAYA BHANU & SRI.P.M.RAFIQ FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.2682/04 IN CRL.M.C.NO.558/04 DISMISSED 31.7.08 SD/- M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.558 OF 2004 ----------------------------------------------------- DATED THIS THE 31st DAY OF JULY, 2008 O R D E R Petitioner is the first accused in C.C.No.357/02 on the file of Judicial First Class Magistrate's Court, Adoor. The second respondent herein is the complainant and the 3rd respondent is the second accused in the complaint, copy of which is produced as Annexure A1 whereby the petitioner and the 3rd respondent herein were complained of committing offences punishable under sections 452, 323, 330 and 34 of IPC. It is alleged in this petition that the Magistrate took cognizance of the case under sections 323 and 34 of IPC as C.C.No.357/02. The prayer in this petition is to quash Annexure A1 as against the petitioner. 2. Heard the learned counsel appearing for the petitioner and the second respondent. No appearance was made by the 3rd respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned ocunsel appearing for the petitioner that the petitioner was discharging the official duty when he has arrested the second respondent herein, who is the CRL.M.C.No.558/04 -2- complainant in Annexure A1. The petitioner herein is the Excise Range Inspector and while discharging his duty, he has arrested the second respondent and registered OR.No.122/99. The complainant was thus arrested on 4.1.2000 and arrayed as the second accused in the said crime on the basis of the confession statement made by the first accused in the said crime. It is also represented by the learned counsel for the petitioner that the complainant/second respondent herein was produced before the learned Magistrate on 5.1.2000 and thereafter on several occasions while he was in judicial custody and at that time no complaint was made against the petitioner or any of the officials of the Department. So also no previous sanction of the Government is obtained for taking cognizance of the offence against the petitioner as provided under Section 197 of Cr.P.C. For these reasons, the complaint, Annexure A1 is liable to be quashed and this petition is filed under Section 482 of Cr.P.C. with that prayer. 4. This petition is opposed by the learned counsel appearing for the second respondent and submitted that all these allegations made by the petitioner in this petition are regarding the facts and evidence of the case and all such allegations can be taken as defence by the petitioner before the learned Magistrate at the time of trial. The CRL.M.C.No.558/04 -3- learned counsel appearing for the 2nd respondent has relied on the decision reported in P.K.Pradhan v. State of Sikkim (2001 (6) SCC 704) and also Raj Kishor Roy v. Kamleshwar Pandey and another (2002(6) SCC 543). The fact that the petitioner was an Excise Range Inspector at the relevant time has not been disputed. Whether he was discharging his official duty and whether he has exceeded the same are to be decided on the basis of the evidence to be adduced by the parties before the trial court. This Court cannot decide the same and is not excepted to consider the same, which is the duty of the trial Judge. It is well settled that the defence under Section 197 Cr.P.C. can be raised at any time after the cognizance or even at the time of conclusion of trial and after conviction as well. The learned counsel appearing for the petitioner has produced the judgment dated 14.1.2005 in the same crime whereby the complainant in Annexure A1 and also the first accused were convicted by the learned Additional District and Sessions Judge, (Adhoc), Fast Track-II, Pathanamthitta for the offence under Section 55(a) of the Kerala Abkari Act. This petition is filed under Section 482 of Cr.P.C. on 4.3.2004 and that judgment is dated 14.1.2005. Hence that judgment has no relevance in deciding this petition, though the complainant in CRL.M.C.No.558/04 -4- Annexure A1 is bound by that decision. It would not be proper for this Court to analyse the case of the complainant in the light of all probabilities in order to determine whether the conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before this Court in the present stage and to conclude that the complaint in Annexure A1 cannot be proceeded with. This power under Section 482 of Cr.P.C. should be exercised sparingly and that too in the rarest of rare cases either to prevent abuse of process of any court or otherwise to secure the ends of justice. The petitioner herein, though he is an Excise official, is bound to face the investigation in the correct perspective and cannot be excluded from the hands of the law. In these circumstances, I find no ground to interfere with the proceedings in C.C.No.357/02 and to quash Annexure A1 complaint as prayed for by the petitioner in this petition. Hence, this petition is devoid of merits and is liable to be dismissed. In the result, the Crl.M.C. fails and it is dismissed. M.C.HARI RANI, JUDGE. dsn