Bijoy P.M. v. Union Territory of Lakshadweep and The Sub Inspector of Police, Amini Police Station, Lakshadweep

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **Crl.MC.No. 713 of 2019** ## **CC NO.11/2017 OF THE CHIEF JUDICIAL MAGISTRATE COURT, AMINI, LAKSHADWEEP** ## **CRIME NO. 3/2017 OF AMINI POLICE STATION, LAKSHADWEEP** ## **PETITIONER/ACCUSED:** **BIJOY.P.M., AGED 40 YEARS, S/O SREEDHARAN, PALLIKARA MANARI PARAMBU, GOVINDAPURAM, KOZHIKODE - 16.** **BY ADV. SRI.K.K.JAYARAJ NAMBIAR** ## **RESPONDENT/STATE OF KERALA/COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.[DELETED]** * **UNION OF TERRITORY OF LAKSHADWEEP, REPRESENTED BY THE STANDING COUNSEL FOR LAKSHADWEEP ADMINISTRATION, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **'THE UNION TERRITORY OF LAKSHADWEEP' IS IMPLEADED AS** * **THE 1ST RESPONDENT BY DELETING 'THE STATE OF KERALA' FROM THE PARTY ARRAY BY ORDER DATED 18.03.2019 IN CRL.M.A.NO.2 OF 2019.** **2 THE SUB INSPECTOR OF POLICE, AMINI POLICE STATION, LAKSHADWEEP.** **R1 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP SRI RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **18.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 713 of 2019** **2** ## **ORDER** The petitioner herein is the accused in C.C.No.11 of 2017 on the file of the Chief Judicial Magistrate Court, Amini, Lakshadweep. In the aforesaid case, he faces indictment under Sections 3(a) and (j) of the Lakshadweep Prohibition Regulation, 1979 and under Section 510 of the IPC. 2. The petitioner reached Minicoy on 10.01.2017, in a shipping vessel by name M.V.Minicoy. As he was found in an inebriated state with a bottle of alcohol in his possession, he was intercepted. He was taken to the Chief Medical Officer of the CHC Amini and his blood sample was taken. A certificate of drunkenness was also issued by the doctor. The bottle of alcohol seized from his possession and the sample of blood were sent to the Central Forensic Science Laboratory. Annexure-A3 report revealed that his blood contained 46% w/v of ethyl alcohol. However, the bottle of alcohol seized from his possession was found dry. After completion of investigation, Annexure-A1 final report was laid before the jurisdictional Magistrate. **Crl.MC.No. 713 of 2019** **3** 3. The learned counsel appearing for the petitioner submitted that no reliance can be placed on Annexure-A3 report as the sample which was collected on 10.01.2017 was received in the lab only on 24.07.2017. The long delay in sending the sample to the Central Forensic Science Lab would cast doubt on the case of the prosecution. He would point out that the bottle seized from the possession of the petitioner was found dry and hence, the offence would not be attracted. He would rely on the decision of the Supreme Court in **State of Haryana v. Bhajan Lal** [(1992) SCC (Cr) 426] and it is contended that this is a fit case warranting exercise of powers under Section 482 to quash the proceedings. 4. The learned Standing Counsel appearing for the 1[st] respondent would contend that the submissions advanced are without merits. The delay and other aspects can only be adjudicated during trial and this Court in exercise of powers under Section 482 of the Cr.P.C. will not be justified in quashing the proceedings, submits the learned Standing Counsel. It is further submitted that the final report has already been laid and the matter is now pending before the learned Magistrate. **Crl.MC.No. 713 of 2019** **4** 5. According to the learned Public Prosecutor, the instant petition filed under Section 482 of the Code is not liable to be entertained as the petitioner has an inviolable right to raise all his contentions before the court below at the time of framing of charge and if the learned Magistrate considers the charge to be groundless, he is empowered to discharge the accused. 6. I have carefully considered the rival contentions. There can be no dispute with the proposition of law enunciated in the judgment relied on by the learned counsel appearing for the petitioner, wherein it has been held that the inherent powers conferred upon the High Court under Section 482 of the Code are wide enough to encompass almost all situations in order to prevent the abuse of process of any court or to otherwise secure the ends of justice. 7. The question, however, is when and under what situation, the High Court should step in and pass appropriate orders in exercise of its jurisdiction under Section 482 of the Code in a criminal trial. In this context, it will be relevant to remind oneself of the principles laid down by the Apex Court in the matter of exercise of powers under **Crl.MC.No. 713 of 2019** **5** Section 482 of the Code. It has been held that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation could be sustained. That is the function of the trial Court. Section 482 of the Code is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without a full-fledged enquiry. Though High Court may exercise its power to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power has be exercised sparingly and with circumspection. The interference must be on sound principles and the inherent power cannot be exercised to stifle a legitimate prosecution. It is also settled that, if on taking the allegations and the complaint as they were, without adding or subtracting anything, no offence was made out, then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 of the Cr.P.C. (See **MCD v. Ram Kishan Rohtagi** , [(1983) 1 SCC 1]; **Soundaram N v. P.K. Ponnuraj and Another** [(2014) 1 SCC 616]). I refrain from passing opinion on the merits of the allegations at this stage lest it affects the case of either the prosecution or the accused. **Crl.MC.No. 713 of 2019** **6** 8. In the case in hand, the charge sheet has been filed before the court below. The procedure for trial of warrant cases by Magistrates is provided for in Chapter XIX of the Code. Section 238 of the Code specifically provides that at the stage of framing of charge, it is obligatory upon the learned Magistrate to hear the prosecution and the accused and if the learned Magistrate considers the charge to be groundless, he is empowered to discharge the accused after recording his reasons. When alternate and comprehensive remedies are available for the petitioner under the Code, this Court will not be justified in sifting and weighing the materials in a petition filed under Section 482 of the Code. I am of the view that the petitioner has to approach the learned Magistrate and advance his contentions at the appropriate stage. I find no good reason to interfere with the proceedings under Section 482 of the Cr.P.C. 9. The learned counsel appearing for the petitioner, at this stage, prayed that necessary directions be given to the court below to consider his application for permanent exemption. The petitioner will be at liberty to file an application in tune with the directions issued by this Court in **Raju T.P. v. State of Kerala** [2009 (3) KHC 14]. If any **Crl.MC.No. 713 of 2019** **7** such application is filed, the learned Magistrate shall consider the same and pass appropriate orders on its merits. The petition will stand dismissed, however, with the above observations. **Sd/RAJA VIJAYARAGHAVAN V., JUDGE** DSV/20.3.19 **Crl.MC.No. 713 of 2019** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT IN CR.NO.3/2017 OF AMINI POLICE STATION PENDING IN C.C.NO.11/2017 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, AMINI. ANNEXURE A2 CERTIFIED COPY OF THE CERTIFICATE OF DRUNKENNESS DATED 10/1/2017, ISSUED BY THE CHIEF MEDICAL OFFICER.** **ANNEXURE A3 TRUE COPY OF THE EXAMINATION REPORT DATED 28/11/2017 ISSUED FROM THE CENTRAL FORENSIC SCIENCE LABORATORY.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**