Rajesh v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944 CRL.MC NO. 6193 OF 2013** **CRIME NO.242/2011 OF NEDUPUZHA POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENTCC 921/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THRISSUR** ## **PETITIONER/ACCUSED:** **RAJESH AGED 30 YEARS S/O.KUMARAN, VALIYAPURAKKAL, KIZHOOR P.O., KUNNAMKULAM, THRISSUR DT. BY ADVS. SRI.B.V.JOY SANKER SRI.PRAMJI PAUL VAZHAPPILLY** ## **RESPONDENTS/STATE/COMPLAINANT :** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 STATION HOUSE OFFICER NEDUPUZHA POLICE STATION, THRISSUR DT – 680 161.** ## **SMT.M.K.PUSHPALATHA, SR.PP.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.6193 of 2013 2 ## BECHU KURIAN THOMAS, J ......….................................. Crl.M.C.No.6193 of 2013 ….................................. Dated this the 26th day of September, 2022 ## ORDER Petitioner faced an indictment for the offences punishable under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 [for short, the Sand Act] in C.C.No.921/2011 on the files of the Judicial First Class Magistrate Court-II, Thrissur. The prosecution alleged that on 28.03.2011 at about 4.16 p.m., the petitioner transported river sand in a lorry bearing registration No.KL-13/L-6010 without having any permits and thereby committed the offences alleged. 2. Pursuant to the registration of FIR on 28.03.2011, a final report was filed, based on which cognizance was taken. However, on 31.10.2012, the learned Magistrate released the petitioner under Section 258 of Cr.P.C., after relying upon the decision in Abdul Azeez v. State of Kerala [2010 (1) KLT 394]. In the said decision, it was held that a Magistrate is not empowered to take cognizance of an offence punishable Crl.M.C.No.6193 of 2013 3 under the Sand Act on the basis of a final report filed by the Police under Section 173(2) but can take cognizance only on the basis of a written complaint filed by the authorized officer as provided under Section 25 of the Act. 3. Subsequently, petitioner was served with a summons in C.C.No.1150/2013 on the files of the Judicial First Class Magistrate Court-II, Thrissur. Immediately on receipt of the said summons, the petitioner approached this Court challenging the proceedings in C.C.No.1150/2013. Annexure-D is the complaint filed by the Sub Inspector of Police, Nedupuzha Police Station on 19.03.2013 alleging offence committed by the petitioner under Section 25 of the Sand Act. 4. A perusal of the said complaint reveals that the factual narration is identical to that in C.C.No.921/2011 i.e., the petitioner, as a driver, transported river sand in a lorry bearing registration No.KL-13/L-6010 without having any licence. 5. The learned counsel for the petitioner contended that in view of the judgment in C.C.No.921/2011 of the Judicial First Crl.M.C.No.6193 of 2013 4 Class Magistrate Court-II, Thrissur; releasing the petitioner under Section 258 of Cr.P.C, the petitioner is deemed to have been discharged and therefore, the complaint on the same set of allegations is not maintainable. Petitioner, thus, seeks to quash the entire proceedings on the ground of double jeopardy, stating that the proceedings in C.C.No.1150/2013 on the files of the Judicial First Class Magistrate Court-II, Thrissur is an abuse of the process of the court. 6. Smt.M.K.Pushpalatha, the learned Public Prosecutor, submitted that filing a complaint through the SHO after release of the petitioner under Section 258 of Cr.P.C. is not prohibited. According to the learned Public Prosecutor, though this Court in Abdul Azeez's case (cited supra) had held that a Magistrate is not empowered to take cognizance of an offence punishable under the Sand Act on the basis of a final report filed by the Police; the very same decision had held that cognizance can be taken on a written complaint of the authorized officer under Section 25 of the Act. It was argued that, though the proceedings in C.C.No.921/2011 Crl.M.C.No.6193 of 2013 5 ended in the release of the petitioner under Section 258 of Cr.P.C., the complaint filed in C.C.No.1150/2013 through the SHO, Nedupuzha Police Station, is perfectly maintainable. Attention of this Court was invited to the provisions of Section 300(5) of Cr.P.C., and it was submitted that since a trial had not taken place in the initial case, the principles of double jeopardy under Article 22 of the Constitution of India and the principle enumerated in Section 300 of Cr.P.C. will not get attracted. The learned Public Prosecutor, also relied upon the decision in Titus v. State of Kerala [2015 (1) KHC 196] and submitted that the only requirement was to get the permission of the court which released the petitioner under Section 258 of Cr.P.C., or that of a superior court, to which the earlier court was subordinate, that too before the stage of trial in the subsequent case. According to the learned Public Prosecutor, since there is no bar in taking cognizance, and the restriction arises only at the commencement of trial, the present petition under Section 482 is not legally maintainable as trial has not yet commenced in the subsequent case. Crl.M.C.No.6193 of 2013 6 7. I have considered the rival contentions. This Court in Abdul Azeez's case (supra) had held that “A Magistrate is not empowered to take cognizance of an offence punishable under the Sand Act on the basis of a final report filed by the Police under Section 173(2) but can take cognizance only on the basis of a written complaint filed by the authorized officer as provided under Section 25 of the Act.” 8. In view of the above, the proceedings against the petitioner in C.C.No.921/2011 culminated in releasing him under Section 258 of Cr.P.C. As per Section 258 of the Cr.P.C., the release of the person under the said provision will have the effect of a discharge. 9. In this context, it is relevant to refer to Section 300(5) of - Cr.P.C., which reads as follows:- - Section 300 : Person once convicted or acquitted not to be tried for same offence. xxxxx xxxxx xxxxx - (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any Crl.M.C.No.6193 of 2013 7 other Court to which the first- mentioned Court is subordinate. 10. The provision stipulates that a person discharged under Section 258 of Cr.P.C. cannot be tried again for the same offence without the consent of the same court or by a Superior Court. Admittedly such a consent has not been obtained. 11. However in the decision in Titus v. State of Kerala [2015 (1) KHC 196] this Court had held that what is prohibited under Section 300(5) of Cr.P.C., is only the trial of the case of the same offence. After interpreting the various provisions of the statute, it was concluded that; ## xxxx xxxx 17. In the explanation to Section 403 of the old code, it has been specifically mentioned that, the dismissal of the complaint, a stopping of the proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273 is not an acquittal for the purpose of this Section. So it is clear from the above that, any order passed under Section 249 of the old code will not be a bar for prosecuting the accused for the same offence on a subsequent stage under Section 403 of the Code of Criminal Procedure, which prohibits trial of the accused for the same offence for which the accused was acquitted or convicted on an earlier Crl.M.C.No.6193 of 2013 8 occasion after trial. But, the present section 300(5) is a newly incorporated provision, which was not there in Section 403 of the old Code, which says that, a person discharged under Section 258, shall not be tried again for the same offence, except with the consent of the court by which he was discharged or any other court to which the first mentioned court is subordinate. What is prohibited under Section 300(5) is trial of the case for the same offence of the same accused, in respect of which, order of deemed discharge under Section 258 of Criminal Procedure has been made. 18. It is seen from the object of incorporating the provision that it is in order to avoid unnecessary harassment of the person from successive trial for the same offence on same set of facts, that this provision has been incorporated. Further it will be seen from Section 258, that court will be passing the order only if the court is satisfied that allegation are groundless and no purpose is proceeding with case further. The dropping of proceedings can be possible on technical ground of want of sanction or procedural defect in filing complaint and taking cognisance on such complaints and in such circumstances, the interpretation of section 300(5) of the Code should stand in a different footing and it should not be interpreted in such a way as to help the person who had committed the offence affecting public interest and interpreting in liberal manner in favour of such person will affect the public morality thereof and give a wrong message to the society. Xxxx xxxx 12. Having regard to the above observations of this Court, I am of the view that filing a criminal complaint by the Sub Inspector of Police soon after discharge of the petitioner in Crl.M.C.No.6193 of 2013 9 C.C.No.921/2011 is not legally prohibited. It is also to be observed that even the taking of cognizance is not prohibited and, therefore, there is no illegality or irregularity in the learned Magistrate taking cognizance of the offence on the basis of Annexure-D complaint. 13. As mentioned earlier, in the decision in Titus's case (supra) it was observed that what is prohibited is only the trial of the case without sanction. Thereafter, an opportunity was granted to the complainant to produce the sanction of the court concerned and directed the postponement of the trial. I am in agreement with the aforesaid procedure adopted by this Court. 14. Having regard to the nature of allegations and the submissions of the learned Public Prosecutor, I am of the considered view that a period of six months can be granted to the complainant in C.C.No.1150/2013 to produce sanction of the court, which passed the order of release of the petitioner under Section 258 of Cr.P.C, and thereafter to proceed with the case as there is a bar on trial under Section 300(5) of Cr.P.C. Crl.M.C.No.6193 of 2013 10 15. In view of the above, the Crl.M.C. filed under Section 482 is dismissed. However, the trial in C.C.No.1150/2013 on the file of the Judicial First Class Magistrate Court-II, Thrissur shall stand deferred by six months to enable the complainant to attempt to obtain sanction as contemplated under Section 300(5) of Cr.P.C from the court which passed the judgment in C.C.No.921/2011 on the files of the Judicial First Class Magistrate Court-II, Thrissur. 16. If the sanction as directed above is obtained within the period specified, the learned Magistrate shall initiate appropriate action to conclude the trial at the earliest. However, if the complainant fails to obtain sanction, necessarily the proceedings will have to be dropped and the learned Magistrate will pass appropriate orders, in accordance with law. With the above observations, this Crl.M.C. is dismissed. Sd/BECHU KURIAN THOMAS JUDGE AMV/27/09/2022 Crl.M.C.No.6193 of 2013 11 ## **APPENDIX OF CRL.MC 6193/2013** ## **PETITIONER ANNEXURES** **ANNEXURE A : TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO.242/2011 OF NEDUPUZHA POLICE STATION, THRISSUR.** **ANNEXURE B : TRUE COPY OF THE JUDGMENT IN C.C.NO.921 OF 2011 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, THRISSUR DATED 31.10.2012** **ANNEXURE C : TRUE COPY OF THE SUMMONS DATED 25.03.2013 BY THE JFCM COURT II, THRISSUR** **ANNEXURE D : TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT DATED 19.03.2013 BEFORE THE JFCM II, THRISSUR** **ANNEXURE E : TRUE COPY OF THE PETITION FILED BY THE 2ND RESPONDENT TO INCORPORATE THE FIR AND OTHER DOCUMENTS IN C.C.NO.921 OF 2011 DATED 19.03.2013.** ## **RESPONDENTS EXHIBITS : NIL** **TRUE COPY**