IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRAM 1930 Crl.MC.No. 1701 of 2005() ------------------------- CC.260/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... PETITIONER: 2ND ACCUSED: ----------------------------- MR. O.V. RAMESH KUMAR, AGED 45 YEARS, S/O. C.M. GOPALAN, `CHANDANA', POOKODU, P.O. PATHAYAKUNNU, THALASSERY. BY ADV. SRI.G.JANARDHANA KURUP (SR.) SRI.JOHN K.GEORGE RESPONDENTS: STATE &COMPLAINANT: -------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALAKKAD DIVISION, (ADDL.R2 IMPLEADED AS PER ORDER ON CRL.M.A.NO.9141/05 IN CRL.M.C.NO.1701/05 DATED 26.7.05) BY PUBLIC PROSECUTOR SHRI JAI GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.1701 OF 2005 ----------------------------------------------------- DATED THIS THE 29th DAY OF AUGUST, 2008 O R D E R The petitioner herein is the second accused in C.C.No.260/04 pending before the Judicial First Class Magistrate's Court, Thalassery. The said case was charge sheeted against accused 1 and 2 for the offences punishable under sections 338 and 304A of IPC on the basis of the final report filed by the first respondent in Crime No.422/02 of Thalassery Police Station. The prayer in this petition filed under Section 482 of Cr.P.C. is to quash the entire proceedings in C.C.No.260/04 before the Court of J.F.C.M., Thalassery in respect of the petitioner herein, who is the second accused before that Court. 2. The facts of the case in brief are as follows: On 27.6.2002 at about 8.55AM, a school van with registration No.KL-13F/4698 driven by one C.P.Ratheesan reached near the Railway level cross No.244-c/2E at Kodiyeri Amsom, Punnol Desom and when reached near the railway gate which was kept opened, the driver tried to cross the railway track. But train CRL.M.C.No.1701/05 -2- No.6345, Nethravathi Express came from the Thalassery side and hit against the van, thereby the van driver succumbed to the injuries and one school boy sustained serious injuries. Crime No.422/02 was registered against accused Nos.1 and 2 under sections 338 and 304A of IPC, who are the Gate Keeper and duty Station Master respectively. Cognizance was taken against both accused by the learned J.F.C.M., Thalassery which is pending as C.C.No.260/04. Annexure-I is the certified copy of the final report filed by Thalassery police in this case, after investigation. Annexure-II is the true copy of the 161 statement given by the Chief Station Master of Thalassery Railway Station during investigation. Annexure-III is the extract of Railway Station Working Rules wherein Rule A.3.1 would show that the level cross was a non- interlocking level cross. On the basis of the above allegations, the learned counsel for the petitioner has submitted that there is no prima facie case against the petitioner who is the second accused in the above crime and that as per the relevant rules of Annexure-III, level Cross No.224A being a non-interlocked level cross, it is kept closed for road traffic and shall be opened only with the consent of the Station Master, Thalassery with permission. No such consent was given by the second accused/petitioner herein to the first accused, who is the Gate CRL.M.C.No.1701/05 -3- Keeper to open the gate and that the petitioner herein is innocent. It is also submitted that there is no material on record to initiate any criminal action against the petitioner herein. 3. It is submitted by the learned Public Prosecutor that Shri V.V.Gopalakrishnan who has given 161 statement before the police during investigation as the Chief Station Master of Railway Station, Thalassery, copy of which is produced as Annexure-II which is relied on by the learned counsel appearing for the petitioner to prove the innocence of the petitioner herein is already cited as CW14 on the side of the prosecution. The Divisional Railway Manager of Southern Railway, Palakkad is impleaded subsequently in this case as Additional second respondent. Nobody has appeared for the second respondent in spite of service of notice to him. 4. The specific case of the petitioner as submitted by the learned senior counsel is that the petitioner herein who is the second accused is the Station Master of Thalassery Railway Station who is the controlling authority of the Gate Keeper who is the first accused in the above crime and as per the relevant rules, the Gate Keeper, the first accused cannot open the railway gate without the consent or without the permission of the second accused. But, without getting the CRL.M.C.No.1701/05 -4- consent or permission of the second accused, the first accused has opened the railway gate which has caused the incident, whereby the school van driver succumbed to the injuries and one school boy sustained serious injuries. Accordingly, crime has been registered against both the accused, that is, the Gate Keeper and the Station Master respectively. The case is pending before the Court of J.F.C.M., Thalassery for the offences under sections 338 and 304A of IPC which is a very serious offence, which cannot be taken up light-heartedly. Whether permission had been given to the petitioner herein as the Station Master is a matter of evidence which the petitioner can take as a valid defence before the Magistrate's Court for which he has to appear before that court and it can be decided after taking the evidence and considering the entire facts and evidence on record by the learned Magistrate. This Court cannot enter into a finding on those aspects regarding the criminality or the innocence of the petitioner in the above case charged against him, which is the duty of the trial judge while disposing the matter. Hence I find that the petitioner is not entitled to get the relief as claimed in this petition to quash the proceedings against him in C.C.No.260/04 before the Court of J.F.C.M., Thalassery by invoking the inherent jurisdiction under Section 482 of CRL.M.C.No.1701/05 -5- Cr.P.C. Therefore, I find that this petition is liable to be dismissed. I do so. In the result, this petition is dismissed. The learned Magistrate is directed to dispose of the case as early as possible. M.C.HARI RANI, JUDGE. dsn