N. Rajesh and A. Nageem v. State of Kerala and Ashok Kumar

CRL.MC NO. 2387 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 CRL.MC NO. 2387 OF 2015** ## **PETITIONERS/ACCUSED:** 1 N.RAJESH FORMER SUB INSPECTOR OF POLICE, PUNNAPPRA POLICE STATION, ALAPPUZHA, NOW WORKING AS SUB INSPECTOR OF POLICE, KADINAMKULAM POLICE STATION, THIRUVANANTHAPURAM (RURAL). 2 A.NAGEEM FORMERLY CIVIL POLICE OFFICER (CPO)- OF PUNNAPRA POLICE STATION, NOW WORKING AS SENIOR CIVIL POLICE OFFICER (SCPO) NEDUMUDI POLICE STATION, ALAPPUZHA. BY ADVS. SRI.K.JAJU BABU (SR.) SRI.JIKKU SEBAN GEORGE SMT.M.U.VIJAYALAKSHMI ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE DEPUTY SUPERINTENDENT OF POLICE CRIME BRANCH CID, HHW-1, SUB UNIT, ALAPPUZHA-688001. 3 ASHOK KUMAR AGED 56 YEARS S/O PADMANABHAN, ABHILASH BHAVAN, SANADHANAPURAM ALAPPUZHA-688003. BY ADVS. CRL.MC NO. 2387 OF 2022 2 SRI.G.PRIYADARSAN THAMPI - R3 SMT.NIMA JACOB, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 2387 OF 2022 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.M.C.No.2387 of 2015 ---------------------------------------------Dated this the 25[th] day of September, 2023** ## **ORDER** The petitioners are accused Nos. 1 and 2 in CP No.3/2015 on the file of the Judicial First Class Magistrate Court- Ambalappuzha. It is the case of the petitioners that one Akhilesh aged 21 years s/o Ashok Kumar, the 3[rd] respondent herein was found driving a motor cycle bearing registration No. KL-7 Y 4190 in a rash and negligent manner through public road on 16.03.2013 near Gurumandiram Junction. The 1[st] petitioner was the Sub-Inspector of Police, Punnapra Police Station at that time. On questioning Sri.Akhilesh, it was found that he had consumed alcohol and on examination with alcohol meter, the result showed the CRL.MC NO. 2387 OF 2022 4 presence of alcohol beyond the permissible limits. The accused was arrested and the motor cycle was taken into custody after preparing the mahazar. The accused was taken in the department Jeep to Punnapra Police Station is the submission. However, with an intention to escape from the police custody, the accused jumped from the running Jeep is the further submission. He suffered head injury and was taken initially to Medical College Hospital, Kottayam and later to Amrita Hospital, where he died on 25.03.2013. The cause of death was the complications following the head injury as per the Post-Mortem report. Annexure-A FIR was registered on 16.03.2013 against the accused alleging the offence under Sec. 279 and 224 IPC r/w Sec.182 of the Motor Vehicles Act. Annexure-A was registered by the Punnapra Police Station as Crime No. 241/2013. Crime No.261/2013 was registered by Punnapra Police Station under Sec. 154 Cr.P.C. in connection with the suspected CRL.MC NO. 2387 OF 2022 5 death of the accused. Annexure-B is the FIR. The investigation of Annexures-A and B were transferred to Crime Branch CID **.** Crime No.261/2013 was also enquired into by the Crime Branch CID as Crime No.90/Cr/2013. It is submitted that after questioning about 64 witnesses, the Crime Branch concluded that Akhilesh died on account of the complications following the head injury on jumping from the Police Jeep. Accordingly, further action was dropped and report was submitted before the Sub-Judicial Magistrate, Alappuzha with notice of information to the complainant under Secs.157(2) & 173(1)(b) Cr.P.C. Annexure- C is the final report. 2. Annexure-D is the final report submitted by the Crime Branch in Crime No. 241/2013 of Punnapra Police Station. In Annexure – D final report, it is stated that the case is abated against Akhilesh. Annexure–D report is submitted before the Judicial First Class Magistrate Court, Ambalappuzha. In the CRL.MC NO. 2387 OF 2022 6 meanwhile, the 3[rd] respondent filed a private complaint before the Judicial First Class Magistrate Court, Ambalappuzha as evident by Annexure–E. When Annexure–E was submitted, it was numbered as CMP No.2325/2013 by the Judicial First Class Magistrate Court, Ambalappuzha and thereafter cognizance was taken by the learned Magistrate as evident by Annexure-F summons issued by the Judicial First Class Magistrate Court, Ambalappuzha. It is the definite case of the petitioner that, without looking into Annexure–C final report, the learned Magistrate taken cognizance of the offence based on Annexure–E complaint. It is submitted that, in the light of the judgment of this Court in **Parameswaran Nair v. Surendran and Another** [2009 (1) KHC 801], it is the duty of the learned Magistrate to consider all relevant materials including the police report before taking cognizance. The counsel also relied on the dictum laid down by the Apex Court in **Virupakshappa D.T. v. C. Subash** [2015 KHC 4330] and contended that, committing police excess in connection with the investigation of a criminal case is an offensive act being reasonably connected with performance of CRL.MC NO. 2387 OF 2022 7 official duty and hence the Magistrate court could not have taken cognizance of the case without the previous sanction of State Government. Hence this Criminal Miscellaneous Case is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. This Court perused Annexure–C final report and also Annexure–F summons issued to the petitioners taking cognizance by the learned Magistrate in Annexure–E complaint. It is clear that, the learned Magistrate has taken cognizance of the offence without considering Annexure–C final report. In **Parameswaran Nair** 's case (supra), this Court considered this point in detail. It will be beneficial to extract the relevant portion of the above judgment: “16. If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings. The Magistrate cannot therefore ignore the final report altogether and CRL.MC NO. 2387 OF 2022 8 consider only the protest complaint and the sworn statement of the witnesses record in that enquiry. 17. The well settled legal propositions can be summed up as follows: (1) When a final report is made by an officer of the Police Station under sub-section 2 of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. (2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report. (3) Magistrate can direct further investigation under sub-section 3 of S.156. (4) Magistrate can take cognizance on the final report itself under S.190(1)(b) disregarding the opinion of the Police and issue summons. (5) Magistrate can take cognizance on the original complaint, where investigation under sub-section 3 of S.156 was earlier ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a Police officer CRL.MC NO. 2387 OF 2022 9 or such other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued. (6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings. 18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the Police under sub-section 2 of S.173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these CRL.MC NO. 2387 OF 2022 10 procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings. ” 5. In the light of the above decision, it is the duty of the learned Magistrate to consider Annexure–C final report before taking cognizance of the offence. 6. Similarly in **Virupakshappa** 's case (supra), the Apex Court observed that the sanction from the Government is necessary if the allegation is of committing police excess in connection with the investigation of a criminal case. That point is also not considered by the learned Magistrate. Therefore, I am of the considered opinion that, taking cognizance by the learned Magistrate is to be quashed and the learned Magistrate has to be directed to reconsider the matter in the light of Annexure–C report and also in the light of the dictum laid down by this Court in **Parameswaran Nair** 's case (supra) and the dictum laid down by the Apex Court in **Virupakshappa** 's case CRL.MC NO. 2387 OF 2022 11 (supra). Therefore, this Criminal Miscellaneous Case is disposed of in the following manner: i) The proceedings which leads to Annexure–F summons in C.P.No.3/2015 on the file of the Judicial First Class Magistrate Court, Ambalappuzha are quashed. ii) The Judicial First Class Magistrate Court, Ambalappuzha is directed to reconsider the matter in the light of the dictum laid down by this Court in **Parameswaran** 's case (supra) and the dictum laid down by the Apex Court in **Virupakshappa** 's case (supra). Sd/- SKS/DM **P.V.KUNHIKRISHNAN JUDGE** CRL.MC NO. 2387 OF 2022 12 ## **APPENDIX OF CRL.MC 2387/2015** PETITIONER ANNEXURES ANNEXURE A: TRUE COPY OF FIR SUBMITTED BY THE SUB INSPECTOR OF POLICE, PUNNAPPRA POLICE STATION ON 16.3.2013 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPPUZHA. ANNEXURE B: TRUE COPY OF FIR FILED BY THE SI OF POLICE FILED BEFORE THE SUB DIVISIONAL MAGISTRATE COURT ALAPPUZHA ON 25.3.2013. ANNEXURE C: TRUE COPY OF FINAL REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE SUB DIVISIONAL MAGISTRATE COURT ALAPPUZHA AND NOTICE TO THE INFPORMANGTS. ANNEXURE D: TRUE COPY OF FINAL REPORT DATED 31.7.2014 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPPUZHA. ANNEXURE E: TRUE COPY OF THE PRIVATE COMPLAINT NO.CP.3/2015 (CMP NO. /20132) FILED BY THE 3RD RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, AMBALAPPUZHA ON 6.4.2013. ANNEXURE F: TRUE COPY OF SUMMONS ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPPUZHA TO THE PETITIONERS. RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE