IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 Crl.MC.No. 963 of 2011() ----------------------------------- CC.NO. 454/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... PETITIONER(S): ACCUSED 1 TO 3 -------------------------------------------------- 1. BINOY MATHEW, ELAVUMKAL HOUSE, KADALIKKADUKARA, MANJALOOR VILLAGE. 2. P.R.RAJESH, PUTHIYAPARAMBIL VEEDU, KADALIKKADUKARA, MANJALOOR VILLAGE. 3. JOSE MANUAL, THADATHIL VEEDU, KADALIKKADUKARA, MANJALOOR VILLAGE. BY ADV. SRI.A.RAJASIMHAN RESPONDENT(S): STATE ------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.963 of 2011 -------------------------------------- Dated this the 25th day of March, 2011. ORDER It is alleged that petitioners and others formed unlawful assembly, committed rioting, caused obstruction to the discharge of official duty of CW9, a Police Officer and committed mischief in prosecution of the common object of unlawful assembly by damaging a bus which ran over two autorickshaws at the place of occurrence at the relevant time. The Police registered a case against petitioners. Learned counsel submitted that allegations are false. Learning about the bus hitting the autorickshaws and injuring some persons, petitioners and others reached the place of occurrence and removed the injured to the hospital. Enraged at the conduct of petitioners the Sub Inspector has registered a case, himself investigated and submitted final report. Learned counsel submitted that inspite of the bus hitting two autorickshaws and injuring certain persons no case has been registered against the driver of the bus and instead, he has been made a charge witness in the case against petitioners. It is contended that at any rate, that the Officer who registered the case himself investigated the case is something which cannot be given judicial recognition. Further argument is that even going by the allegations in the final report no offence punishable under Section 353 of the Indian Penal Code (for short, “the IPC”) is made out. Learned counsel has placed reliance on the decision in Xavier v. State of Kerala (1998 (1) KLT 686). I have heard learned Public Prosecutor also. Crl.MC No.963/2011 2 2. Question for consideration is not whether allegations made against petitioners in the final report are correct or not but whether the final report makes out any case against petitioners as alleged and there is any legal infirmity which this Court has to take into account while considering whether proceeding is liable to be quashed under Section 482 of the Code of Criminal Procedure (for short, “the Code”). In the final report it is stated that the bus hit two autorickshaws and caused traffic block and learning about that, the Sub Inspector and party reached there and removed the bus to a place 30 metres away from the scene of occurrence. CWs 7 to 9, Police Officers were engaged in the discharge of their official duty. At that time petitioners and others led by third petitioner/accused No.3 caused obstruction to the official duty of CW9, the third petitioner stood in front of the bus while petitioners 1 and 2 and accused 8 to 10 pelted stones at the bus and caused damage to it. It is alleged that first petitioner and accused 4 and 6 put sand and salt in diesel tank of the bus and caused damage to it. 3. Argument is that no offence punishable under Section 353 of the IPC is made out. Firstly that is a matter which petitioners have to urge before the learned Magistrate while considering the case. Secondly there is specific charge in the final report that petitioners and others by their conduct obstructed CW9, the Police Officer from discharging his official duty. Therefore contention that charge under Section 353 of the IPC cannot be made out cannot be accepted at this stage. Crl.MC No.963/2011 3 4. Then the next question is whether, that the Police Officer who registered the case investigated and submitted final report is sufficient to quash the proceeding. Reliance is placed on the decision in Xavier v. State of Kerala (supra). It is contended that the final report is the judgment of the Police Officer and when the same Police Officer is the complainant, he could not be the judge of his own cause. In the decision cited, this Court observed that it is not proper that a Police Officer who is the complainant conducted investigation and that investigation should have been done by a higher official. Yet another decision on the point is Noushad v. State of Kerala (2000 (1) KLT 785) where dealing with a case under the Narcotic Drugs and Psychotropic Substances Act learned Judge held that when the complainant and the investigating Officer are one and same it cannot be said that investigation is fair. I must bear in mind that those cases concerned validity of conviction and sentence of the accused and not a proceeding where proceedings were quashed under Section 482 of the Code. That apart, a Division Bench in Kader v. State of Kerala (2001 (2) KLT 407) while dealing with investigation under the Narcotic Drugs and Psychotropic Substances Act held that merely because the defacto complainant investigated the case, that will not vitiate proceeding in the absence of proof prejudice to the accused. In holding so, the decision in Noushad v. State of Kerala (referred supra) was overruled and decision in Xavier v. State of Kerala (supra) was held to be not good law. Crl.MC No.963/2011 4 5. I do not find any provision which says that the Officer who detected the offence (or registered the case) could not investigate the case and submit a final report. Whether, on account of investigation being conducted by the Officer who detected the offence or registered the case any prejudice has been caused to the accused is a matter which the trial court has to decide on the evidence on record. On the ground that the Sub Inspector who registered the case investigated the same and submitted final report, request to quash proceeding against petitioners cannot be allowed. 6. Petitioners have their own version as to how the incident started, progressed and culminated. That is their defence. They are entitled to take all defence in the trial court. I do not find reason to quash proceeding against petitioners. Criminal Miscellaneous Case is dismissed. THOMAS P.JOSEPH, Judge. cks