IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 Crl.MC.No. 153 of 2011() ------------------------ CC.292/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA CRIME NO.924/2009 OF KALAMASSERY POLICESTATION .................... PETITIONER(S): ACCUSED ---------------------- THAZNIM AL-MUBARAK, AGED 20 YEARS, S/O.KASIM KOYA, MADAPPILLY HOUSE, CHETLATH ISLAND, LAKSHADWEEP, NOW RESIDING A QUARTERS NO.B-3, LAKSHADEWEEP QUARTERS COMPLEX, NEAR IOC OFFICE, PANAMPILLY NAGAR, ERNAKULAM DISTRICT, COCHIN-682 036. BY ADV. SRI.K.A.JALEEL SRI.C.Y.VINOD KUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, (REP.BY THE SUB INSPECTOR OF POLICE, KALAMASSERY POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.153 of 2011 -------------------------------------- Dated this the 14th day of February, 2011. ORDER Petitioner is accused in Crime No.924 of 2009 of Kalamassery Police Station and C.C.No.292 of 2009 of the court of learned Judicial First Class Magistrate-II, Aluva for offences punishable under Sections 143, 147, 341 and 323 read with Section 149 of the Indian Penal Code (for short, “the Code”) and Section 4 of the Kerala Prohibition of Ragging Act, 1998 (for short, “the Act”). Petitioner seeks to quash proceedings against him on the ground that registration of the crime and initiation of proceedings are illegal and without jurisdiction. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Case is that petitioner and others (accused Nos.2 to 6) formed unlawful assembly on 17.06.2009 at about 1.15 p.m. wrongfully restrained and voluntarily caused hurt to the defacto complainant. Information was given by the defacto complainant based on which Kalamassery Police has registered a case for offences stated above. Since accused Nos.2 to 6 were juvenile, final report against them was filed before the Juvenile Justice Board, Ernakulam and by Annexure-IV, judgment they were acquitted since witnesses did not support the prosecution. Learned counsel submitted that in the light of Annexur-AIV, judgment proceedings against petitioner may be quashed. I have heard learned Crl.MC No.153/2011 2 Public Prosecutor also. 3. It is seen from Annexure-II, FIR that the case was registered for offences under the Code and the Act. So far as registration of the case for offence under Section 4of the Act is concerned, procedure to be followed is prescribed under Section 6 of the said Act. It is not disputed that the said offence is non-cognizable. When information regarding commission of a non- cognizable offence is received, the Police ought to have followed procedure prescribed under Section 155 of the Code of Criminal Procedure (for short, “the Code”). That provision has not been complied. This is not a case where information regarding commission of a cognizable offence is received, police started investigation and in the course of that, commission of non-cognizable offence is revealed. The Police also could not have registered a case for offence under Section 4 of the Act except on a complaint received under Section 6 of the Act. That provision is also violated. Thus, the Police had total lack of jurisdiction to register a case for offence under Section 4 of the Act, investigate and submit final report regarding that offence. In the light of the decision in Ahammed Manaf v. Sub Inspector of Police (2010 (4) KLT 837) initiation of proceedings so far as the offence under Section 4 of the Act is illegal, without jurisdiction and hence the final report based on that and cognizance taken cannot stand. But that cannot in any way affect the cognizance taken of the offences under the Code. Those offences, Police had Crl.MC No.153/2011 3 the authority to register a case, investigate and submit final report. Hence learned Magistrate was justified in taking cognizance of offences punishable under the Code. 4. That, accused Nos.2 to 6 have been acquitted as seen from Annexure-IV is no ground to quash proceedings against petitioner for offence under the Code. Petitioner has to face trial for offences under the said Code. Resultantly this petition is allowed in part in the following lines: i. Final report in Crime No.924 of 2009 of Kalamassery Police Station, cognizance taken thereon and proceedings in C.C.No.292 of 2009 of the court of learned Judicial First Class Magistrate-II, Aluva to the extent it concerned petitioner and to the extent it related to offence under Section 4 of the Act are quashed. ii. Final report, cognizance taken and proceeding initiated against petitioner for offence under the Indian Penal Code would stand and petitioner has to face trial for those offences. THOMAS P.JOSEPH, Judge. cks