IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Crl.MC.No. 1510 of 2006() ------------------------- CC.333/2002 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... (CRIME NO.115 OF 2001 OF KUNNATHUNADU POLICE STATION) ................... PETITIONER(S): ACCUSED NO.1: -------------------------------------------------- SABU M.JACOB, S/O. M.C. JACOB, MEKKAM KUNNEL, VILANGUKARA, KIZHAKKAMBALAM, KUNNATHUNADU. BY ADVS. MR.B.RAMAN PILLAI, MR.GEORGE PHILIP, MR.R.ANIL, MR.RAJU RADHAKRISHNAN, MR.ANIL K.MOHAMMED, MR.DELVIN JACOB MATHEWS. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/08/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1510 of 2006 -------------------------- ORDER First accused in C.C.No.333/2002 on the file of Judicial First Class Magistrate's Court, Kolenchery filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure-D order passed by the Magistrate on 13.2.2006, holding that as cognizance was taken against the petitioner, filing of a further report, after re-investigation under Section 173(8) of Code of Criminal Procedure, will not affect the cognizance already taken and therefore, proceedings as against the petitioner is to be continued. 2. Based on the final report submitted after investigation under Section 173(2) of Code of Criminal Procedure dated 23.1.2002, Judicial First Class Magistrate, Kolenchery took cognizance of the offences under Sections 143, 147, 148, 452, 354 and 427 read with Section 149 of Indian Penal Code as against seven accused. Subsequently, in O.P.No.3567/2002, filed by the petitioner, under Anenxure-A judgment, this Court CRMC 1510/06 2 directed that investigation of Crime Nos.248/2000, 249/2000, 250/2000, 115/2001, 116/2001, 117/2001, 118/2001 and 119/2001 are to be conducted by the Superintendent of Police, Crime Branch, Ernakulam. After completing the further investigation so ordered, a final report was submitted as provided under Section 173(8) of Code of Criminal Procedure stating that out of the original accused, accused 1, 5 and 6 are not involved in the case and including the remaining original accused only eleven accused are involved. When petitioner contended that he cannot be prosecuted further, in view of the final report, under Annexure-D order dated 13.3.2006, learned Magistrate, following the decision of the Apex Court in Adalat Prasad v. Rooplal Jindal (2004 (3) KLT 382), held that once cognizance is taken, case as against the petitioner is to be proceeded further. This petition is filed to quash the said order. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. The facts are undisputed. Though, as per the original final report filed under Section 173(2) of CRMC 1510/06 3 Code of Criminal Procedure cognizance was taken against seven accused including the petitioner, dissatisfied with the investigation, this Court directed a further investigation to be conducted by the Superintendent of Police, Crime Branch, Ernakulam. After the said further investigation, a final report as provided under Section 173(8), which is to be treated as a final report submitted under Section 173(2) of Code of Criminal Procedure, was filed stating that accused 1,5 and 6 are not involved in the case. Therefore, learned Magistrate, even if, proceeded with trial of those accused, they can only be acquitted. In such circumstances, it is not, in the interest of justice, to continue the proceedings as against the petitioner and accused 5 and 6. Though learned Magistrate relied on the decision in Adalat Prasad's case (supra), that was a case where, summons issued under Section 204 of Code of Criminal Procedure by the Magistrate, after conducting an inquiry under Section 202 of Code of Criminal Procedure, was later withdrawn, at the instance of the accused. Honourable Supreme Court held that Magistrate has no power to withdraw the summons CRMC 1510/06 4 issued under section 204 of Code of Criminal Procedure and the remedy is to invoke the provisions of Section 482 of Code of Criminal Procedure. When, based on the unsatisfactory investigation, a further investigation was ordered by this Court and on such further investigation, it is found that petitioner is not involved in the case, continuation of the proceedings as against the petitioner is only an abuse of process of the court. In such circumstances, further proceedings in C.C.No.333/2002 as against the petitioner and accused 5 and 6 would only be an abuse of process of the court, as, even if they are tried, there is no chance for convicting them. To secure justice, case as against accused 1, 5 and 6 in C.C. No.333/2002 is quashed. Petition is disposed. 6th August, 2009 (M.Sasidharan Nambiar, Judge) tkv