Sreekumar v. State of Kerala and Sub Inspector of Police, Cheruthuruthy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 16TH DAY OF JUNE 2014/26TH JYAISHTA, 1936 Crl.MC.No. 1822 of 2013 () ------------------------------------- AGAINST THE ORDER IN CMP NO.4864/2013 IN CC NO.633/2012 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, WADAKKANCHERY ## PETITIONER/4TH ACCUSED : -------------------------------------- SREEKUMAR, S/O. GOVINDA PILLAI, KOMALA VILAS(H), MANAKKAD VILLAGE, CHALA DESOM, THIRUVANANTHAPURAM. ## BY ADV. SRI.NIDHI BALACHANDRAN RESPONDENTS : ---------------------- ## 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2. SUB INSPECTOR OF POLICE, CHERUTHURUTHY POLICE STATION, VADAKKANCHERY, PIN-680 582. BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-06-2014, ALONG WITH CRL.M.C.NO.1828/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1822 of 2013 () ------------------------------------ ## APPENDIX PETITIONER’S ANNEXURES : -------------------------------------- ANNEXURE A1 : COPY OF THE FINAL REPORT IN CRIME NO.238/2010 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VADAKANCHERY. ANNEXURE A2 : COPY OF THE ORDER NO.B3-9020/11 DTD.22.2.2012 ISSUED BY THE SUB DIVISIONAL MAGISTRATE, THRISSUR. ANNEXURE A3 : COPY OF THE REFERENCE ORDER DTD.13.2.2013 IN CRL.MC NO.2791/12 AND CONNECTED CASES. ANNEXURE A4 : CERTIFIED COPY OF THE ORDER DTD.20.4.2013 IN CMP NO.4864/13 IN CC 633/12 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VADAKANCHERY. RESPONDENTS’ ANNEXURES : --------------------------------------- NIL // True Copy // P.A. To Judge DSV/21/06 ## P.D.RAJAN, J. -------------------------------------------------Crl.M.C.Nos. 1822 & 1828 of 2013 --------------------------------------------------Dated this the 16[th] day of June, 2014 ## O R D E R These petitions are filed under Section 482 of the Code of Criminal Procedure to quash proceedings in C.C.No.633 of 2012 and C.C.No.393 of 2012 pending before the Judicial First Class Magistrate’s Court, Wadakkanchery. 2. Crl.M.C.No.1822 of 2013 is preferred against C.C.No.633 of 2012 of the Judicial First Class Magistrate’s Court, Wadakkanchery and Crl.M.C.No.1828 of 2013 is filed against C.C.No.393 of 2012 of the Judicial First Class Magistrate’s Court, Wadakkanchery. 3. In Crl.M.C.No.1822 of 2013, the petitioner is the 4[th] accused in Crime No.238 of 2010 for the offences under Sections 20 and 21 of the Kerala Protection of River Bank and Removal of Sand Act. The allegation was that the 1[st] accused transported the river sand illegally with the help of the other accused ie., accused nos. 2, 3 and 4. On the basis Crl.M.C.Nos.1822 & 1828/13 2 of information, a crime as Crime No.238 of 2010 was registered and DySP, CBCID, OCW-III, Sub Unit, Thrissur after investigation, filed Annexure A1 final report before the Judicial First Class Magistrate’s Court, Wadakkanchery. Against that order, the petitioner/4[th] accused filed this petition. In Crl.M.C.No.1828 of 2013, the petitioner is the 4[th] accused in Crime No.237 of 2010 for the offences under Sections 20 and 21 of the Kerala Protection of River Bank and Removal of Sand Act. The allegation was that the 1[st] accused transported the river sand illegally with the help of the other accused ie., accused nos. 2, 3 and 4. On the basis of information, a crime as Crime No.237 of 2010 was registered and DySP, CBCID, OCW-III, Sub Unit, Thrissur after investigation, filed Annexure A1 final report before the Judicial First Class Magistrate’s Court, Wadakkanchery. Against that order, the petitioner/4[th] accused filed this petition. 4. The learned counsel for the petitioner contended that in Crl.M.C.No.1553 of 2013, the proceedings in Crl.M.C.Nos.1822 & 1828/13 3 C.C.Nos.633 and 393 of 2012 were quashed by this Court against the 3[rd] accused. Hence, there is no need to continue the proceedings against the 4[th] accused also. 5. The learned Public Prosecutor has no serious arguments with regard to the above contention. 6. It is true that the above two cases were filed by the DySP, CBCID, OCW-III, Sub Unit, Thrissur, alleging the offences punishable under Sections 20 and 21 of the Kerala Protection of River Bank and Removal of Sand Act against the petitioner, who is the 4[th] accused in both these cases. As per the order in Crl.M.C.No.1553 of 2013, the proceedings in both cases were quashed by this Court against the 3[rd] accused. In the aforesaid order, in paragraph 20, it is observed as follows: “20. In the light of the findings of the Sub Divisional Magistrate, who is a competent authority under the above Act, it can be seen that the vehicles, which were allegedly seized in the above crime, were having valid pass for transporting river sand. Annexure A6 order of the said authority became final. So the contentions raised by the learned Public Prosecutor, to Crl.M.C.Nos.1822 & 1828/13 4 assail Annexure A6 and his attempt to convince this Court about the factual dispute i.e., the fact whether the said vehicles were having valid pass at the material time is not settled and yet to be decided in the criminal court, cannot be accepted. So the possible conclusion that can be arrived is that in the light of the above findings of the competent authority and particularly in the light of the Government Order Annexure A-6, the main plank of the prosecution case that the above lorries were not having valid pass has broken. If the main plank of the prosecution has broken, there is no meaning in directing the petitioner to face the trial especially when, as I indicated earlier, there is no material to the satisfaction of this Court to prove the presence of the petitioner at the material time at the place of occurrence and to establish his identity and thereby to implicate the petitioner in the above case. In such circumstances, if the proceedings against the petitioner are allowed to continue, the same will amount to abuse of process of the court and will result in miscarriage of justice. In the above circumstances, by allowing Crl.M.C.Nos.1550 and 1553 of 2013, all proceedings pending in C.C.Nos.633 and 393 of 2012 on the file of the Judicial First Class Magistrate Court-II, Wadakkanchery are quashed. Since the proceedings in C.C.No.633 of 2013 are quashed, no separate order is necessary in Crl.M.C.No.2311 of 2013 and the same is accordingly closed.” Crl.M.C.Nos.1822 & 1828/13 5 7. I have considered the averments in view of the decision rendered by this Court in **Ismayil & Ors v. State of Kerala [2010(3)KHC 677]** . There is no meaning in proceeding with these two petitions. If the proceedings against the petitioner in both these cases are continued, it will amount to abuse of process of Court. All factors are discussed in Crl.M.C.No.1553 of 2013 and no further discussion is warranted. Therefore, I quash the proceedings against the petitioner who is the 4[th] accused in C.C.Nos. 633 and 393 of 2012 and I allow these petitions. Sd/P.D.RAJAN (JUDGE). DSV/18/06 Crl.M.C.Nos.1822 & 1828/13 6