IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 Crl.MC.No. 4408 of 2008() ------------------------- C.C.NO.1292/05 OF THE JFCM COURT, KARUNAGAPPALLY. CRIME NO.51/05 OF THE OCHIRA POLICE STATION PETITIONER(S): --------------- RAJAN THATHRIYAT, AGED 57, S/O.ITTEKOTTE KUNNEKKATU KESAVA PANICKER KARAYOOR DESOM, PERAKAM AMSOM, POOKODE VILLAGE, CHAVAKKAD TALUK AND R/AT ELLATHUVALAPPIL HOUSE, CHAZHIYATTIRI AMSOM, THIRUMITTAKODE VILLAGE II, OTTAPALAM TALUK. BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P RESPONDENT(S): --------------- THE STATE OF KERALA, REP. BY S.I. OF POLICE OCHIRA POLICE STATION, REP. BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4408 of 2008 ------------------------------------------------- Dated this the 30th day of January, 2009 ORDER The petitioner has come to this Court complaining that he is being unnecessarily harassed by the police on the basis of a non-bailable warrant issued against the accused in C.C.No.1292/05 before the learned JFCM, Karunagappally. According to the petitioner, he is not the real accused in that case. The real accused is some one else and the warrant has been issued to procure the arrest of such person. But the police, on the basis of some misconception, was trying to execute the warrant against the petitioner. It is with those averments that the petitioner came to this Court complaining about the vexation that has resulted on account of the attempt of the Crl.M.C. No. 4408 of 2008 -: 2 :- police to execute the warrant. However, the prayer was to quash the FIR as also the final report submitted by the police. 2. Thus, the real controversy was whether the petitioner is the person who is arrayed as accused in the said C.C. and whether the warrant is really issued to procure the presence of the petitioner. To resolve this controversy, efforts were made by this Court. The petitioner was directed to appear before the police and the police was requested to verify and report whether the petitioner is the person who they want to arrest as accused in C.C.No.1292/05 (Crime No.51/05 of the Ochira Police Station). 3. Initially, it appears that there was some confusion. A person appeared before the police. The police were not able to confirm that that person is the accused in the case or the petitioner herein. It was reported that such person Crl.M.C. No. 4408 of 2008 -: 3 :- had gone to the police station with the wife of the real accused. However, even the de facto complainant, it would appear, was not able to identify the petitioner as the accused in the case. At that stage, doubt was expressed as to whether it was the petitioner herein himself who went to the police station with the wife of the real accused. To resolve that controversy, the petitioner was directed to appear before the Investigating Officer along with a photograph of the petitioner attested by his counsel to confirm that the person so appearing is the petitioner himself. 4. The controversy is now seen settled. The police take the very specific stand that the petitioner is the accused. According to them, the petitioner has undergone some trauma which has resulted in serious change in the physique, complexion and appearance of the petitioner. According to the police, that explains the inability of the de Crl.M.C. No. 4408 of 2008 -: 4 :- facto complainant at the early stage to confirm that the person who appeared before the police was the real accused. The details are mentioned in para-5 of the statement filed by the police official which I extract below: “5. Thereafter Oachira Police made an enqiry about the identity of the petitioner herein in order to verify the real accused. Voters' list with photographs were also obtained from the Village Officer, Thirumittakkoottu II Village. Statements of neighbour of Rajan were recorded. Recent photographs of Rajan affixed in the affidavit of Advocate K.A. Javad was also shown to those witnesses and they identified the said Rajan, petitioner herein as the same person. It was also learnt that the petitioner herein was subjected to serious manhandling by unidentified persons and he sustained serious injuries to his head. He was admitted to SEVA Hospital, Pattampi. Crl.M.C. No. 4408 of 2008 -: 5 :- He remained unconscious for a month. After discharge also he was bed ridden and even now continuing treatment. After the said incident and due the treatment, the physique, face complexion and appearance of the Rajan were changed.” 5. It appears to me to be evident now that the petitioner is the indictee in C.C.No.1292/05 and the accused in Crime No.51/05 of the Ochira Police Station. At least that is the allegation. This is only a provisional finding. This finding will not bind the petitioner in the course of trial. It shall be open to the petitioner in such proceedings to advance his contention that he is not the real accused in C.C.No.1292/05 and he is being proceeded against under some mistaken notion. It is for the petitioner to raise that contention before the learned Magistrate and substantiate the same. 6. The petitioner has not appeared before the learned Crl.M.C. No. 4408 of 2008 -: 6 :- Magistrate so far. I am satisfied that the petitioner can be granted an opportunity to appear before the learned Magistrate. The petitioner shall appear before the learned Magistrate on or before 16/2/09. If he appears and files an application for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate shall proceed to pass appropriate orders on merits, in accordance with law and expeditiously – on the date of surrender itself. This petition is dismissed with the above observations. 7. Hand over a copy of this order to the learned counsel for the petitioner for production before the learned Magistrate when he appears before the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 4408 of 2008 -: 7 :- R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4408 of 2008 ------------------------------------------------- Dated this the 12th day of January, 2009 ORDER The controversy has not been resolved yet. I direct that the petitioner shall appear before the Investigating Officer with three copies of his recent photographs affixing signature and LTI on their back in the presence of the In.O. The Investigating Officer shall verify in the presence of the de facto complainant whether the person shown in the photograph is the one who appears before him. He shall then specify whether that person is required to be arrested as accused in the crime. The petitioner shall appear before the Investigating Officer at 11 a.m. on 27/1/09. Call on 30/1/09. 2. Hand over a copy of this order to the learned Public Crl.M.C. No. 4408 of 2008 -: 8 :- Prosecutor. Sd/- (R. BASANT, JUDGE) Nan/ //true copy//