IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.MC.No. 1700 of 2009(B) -------------------------------------- (AGAINST ORDER IN CRL.M.P. 10457/08 IN C.C. 1393/04 OF THE HONOURABLE JFCM COURT-I, PATHANAMTHITTA DTD. 25/03/09) .......... PETITIONERS/ ACCUSED: ------------------------------------- 1. AJITHKUMAR,AGED 39 YEARS, S/O.ANGADHARAN NAIR, K.G.BHAVAN, T.C.30/217 ANAYARA P.O. TRIVANDRUM. 2. SANTHOSH KUMAR,AGED 33 YEARS, S/O.GOPALAKRISHNAN NAIR, MANNITHOTTAHIL HOUSE, VASHAMUTTOM, OMALLOOR,PATHANAMTHITTA. BY ADV. MR.P.SANJAY. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPD.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1700 of 2009-B ================== Dated this the 10th day of June, 2009. O R D E R Petitioners are the accused in C.C.No.1393/2004 on the file of Judicial First Class Magistrate Court-I, Pathanamthitta. The offences alleged are under Sections 4 (b) and 7(3) of Kerala Lotteries (Regulation) Act, 1998 and Rule 7 of Kerala State Lotteries and Online Lotteries (Regulation) Rules, 2003. This petition is filed under Section 482 of Code of Criminal Procedure to set aside Annexure A10 order in Crl.M.P.No.10457/2008 filed by the petitioners to drop the proceedings under Section 258 of Code of Criminal Procedure contending that in view of the directions of the Apex Court in Annexure A5 and A7 orders, the case cannot be continued. 2. Learned Counsel appearing for petitioners and learned Public Prosecutor were heard. Crl.M.C.No.1700/2009-B -2- 3. As per Annexure A4 order the Division Bench of this Court, on 19-12-2003 restrained State of Kerala and the Director General of Police from enforcing sub-rule (3) of Rule 24 of Kerala State Lotteries and Online Lotteries (Regulation) Rules and suspending the sale of tickets by making it clear that the order will not stand in the way of the Government approaching the Central Government for taking action for violation of the provisions in Section 6 of Kerala Lotteries (Regulation) Act. Subsequently, the said W.A.No.2044/2003 was dismissed. It was challenged before the Apex Court in C.A.No.3089/2004. As per Annexure A5 order dated 17-5-2004 the interim order originally passed under Annexure A4 order by the Division Bench was restored, making it clear that it will continue till the disposal of the pendency of the proceedings before the Apex Court. Later under Annexure A7 order, when it was pointed out to the Apex Court that criminal proceedings are being registered, respondents therein, including the Director Crl.M.C.No.1700/2009-B -3- General of Police undertook not to register any FIRs. in future for violation of the Kerala Lotteries (Regulation) Act, 1998. It was also undertaken not to take any further steps in the FIRs. already registered against the petitioners. Their Lordship directed that “Whatever action has been taken by way of sealing the premises or seizing of the equipments while acting on the FIRs. already registered, shall be undone”. Contending that in view of Annexure A7 order, the proceedings cannot be continued, petitioners filed Crl.M.P.No.1665/2004 before the Sessions Court, Pathanamthtitta. Under Annexure A8 order that petition was dismissed. It was challenged before this Court in Crl.M.C.No.2024/2005. Crl.M.C. was dismissed as it was pointed out that Annexure A7 order was passed only on 24-1-2005 but the final report was filed earlier on 7-12-2004. It is thereafter Crl.M.P.No.10457/2008 was filed before the Magistrate, which was dismissed under Annexure A10 order. Crl.M.C.No.1700/2009-B -4- 4. Though under Annexure A7 order of the Apex Court, respondents have undertaken not to register FIRs. and also not to take further steps in the FIRs. there is no undertaking that the case registered in which final reports were filed will be withdrawn. What the Apex Court directed under Annexure A7 is to undo the acts taken in the FIR, like sealing the premises or seizing the equipments. In such circumstances petitioner is not entitled to get the proceedings dropped as sought for in Crl.M.P.No. 10457/2008. If ultimately the appeal filed before the Apex Court is to be dismissed, it cannot be said that the proceedings which have been initiated and pending before the Court is not valid. In such circumstances petition is disposed directing Judicial First Class Magistrate, Pathanamthitta to stay the proceedings till the disposal of C.A.Nos.5835-5839 of 2004 pending before the Apex Court. M.SASIDHARAN NAMBIAR JUDGE dkr