High Court of KeralaSingle Judge2016-02-19Crl.M.C. allowed; proceedings in CC No.102/2009...

Sudhakaran Nair v. The State of Kerala

Case / Petition Number:Crl.M.C. No. 5632 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Kemal Pasha
Judgment Date: 2016-02-19
Court Decision / Holding: In the result, this Crl.M.C. is allowed and all further proceedings against the petitioner in CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal, which has arisen from Crime No.556/2004 of Kazhakoottom Police Station, are quashed. It is made clear that it is open to the victim to have recourse to appropriate proceedings in accordance with law.
Final Disposition: Crl.M.C. allowed; proceedings in CC No.102/2009 quashed; victim may pursue appropriate remedies.

Parties to the Case

Appellants / Petitioners

SUDHAKARAN NAIR, Aged 62 years, S/o. Thankappan Nair, Kottara Veedu, Near LP School Mele Kadakkavoor, Chirayinkeezhu Village, Thiruvananthapuram.

Respondents

THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Suman Chakravarthy
• Smt. K.R. Rija

Counsels for Respondents

• Public Prosecutor (Smt. Sareena George)

Case Synopsis & Summary

Sudhakaran Nair, the petitioner, faced proceedings arising from Crime No. 556/2004 registered at Kazhakoottom Police Station, Thiruvananthapuram, leading to CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal. The matter originated from a motor vehicle accident in which one Mohanan died on 18.10.2004. An Annexure-C petition (dated 25.10.2008) sought a report from the investigating officer regarding the stage of investigation. In response, Annexure-B report stated the incident was a road traffic accident and not due to driver callousness or negligence, prompting the investigating officer to refer the matter for further action. On 09.02.2009, the learned Magistrate, after hearing counsel and examining statements, held that the investigation officer’s conclusion was wrong and, relying on SANJAY BANSAL v. JAWAHARLAL VATS (SC) 2008, took cognizance under Section 190(1)(b) Cr.P.C. read with Sections 279 and 304A IPC against Sudhakaran Nair and issued summons. Crucially, no final report under Section 173(2) Cr.P.C. had been filed by that date. The court noted the absence of a police report contemplated under 173(2) Cr.P.C. and held cognizance premature and unsustainable. Subsequently, final reports and refer reports were filed only in 2012–2013. The High Court quashed all further proceedings in CC No.102/2009 and allowed the Crl.M.C., allowing the victim to pursue remedies as law permits.

Provisions of Law Cited

Section 190(1)(b) Cr.P.C.Section 173(2) Cr.P.C.Section 279 IPCSection 304A IPC

Legal Doctrines & Maxims

SANJAY BANSAL v. JAWAHARLAL VATS, 2008 (2) KLT SN 78 (SC)
Cognizance under 190(1)(b) Cr.P.C. requires a police report under 173(2) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that cognizance under Section 190(1)(b) Cr.P.C. was wrongly and prematurely taken without a final report under Section 173(2) Cr.P.C. being filed. The Annexure-B report could not be treated as the requisite police report, as contemplated by law. Without a final report, proceeding on the basis of 190(1)(b) invoked in connection with Sections 279 and 304A IPC is unsustainable, rendering CC No.102/2009 illegal. The remedy is quashing the proceedings and allowing the petitioner to pursue lawful avenues.

Contentions of Respondents

State/Prosecutor contends that the cognizance was rooted in material gathered during investigation and that the magistrate properly evaluated or relied on the available materials, including the referenced apex court decision (SANJAY BANSAL v. JAWAHARLAL VATS). The State would emphasize the necessity of considering progress in investigation and the broader interests of justice, while acknowledging the procedural irregularities that led to quashing the proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
SANJAY BANSAL v. JAWAHARLAL VATS	2008 (2) KLT SN 78 (SC)	Positive	Cited by the learned Magistrate to justify cognizance under 190(1)(b) Cr.P.C. in view of the facts and the apex court precedent cited in the order.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Sudhakaran Nair v. The State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** ## **Crl.MC.No. 5632 of 2014** **----------------------------------------** ## **C.C.NO.102/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ATTINGAL** ## **CRIME NO. 556/2004 OF KAZHAKOOTTAM POLICE STATION , THIRUVANANTHAPURAM DISTRICT** **---------------------** ## **PETITIONER(S)/ACCUSED :** **------------------------------------------** **SUDHAKARAN NAIR, AGED 62 YEARS, S/O.THANKAPPAN NAIR, KOTTARA VEEDU, NEAR LP SCHOOL MELE KADAKKAVOOR, CHIRAYINKEEXHE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA** ## **RESPONDENT(S)/COMPLAINANT AND STATE OF KERALA :** **-----------------------------------------------------------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 5632 of 2014** **-------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES :** **ANNEXURE A: TRUE COPY OF THE FIR IN CRIME NO.556/04. ANNEXURE B: TRUE COPY OF THE REPORT DATED 07/07/2008. ANNEXURE C: TRUE COPY OF THE PETITION DATED 25.10.2008. ANNEXURE D: CERTIFIED COPY OF THE ORDER SHEET.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl.M.C. No.5632 of 2014 ````````````````````````````````````````````````````````````` _Dated this the 19[th] day of February, 2016_ ## **O R D E R** ~ ~ ~ ~ ~ ~ One Mohanan died in a motor vehicle accident on 18.10.2004 for which a crime was registered as Crime No.556/2004 of Kazhakoottom Police Station against the driver, who was driving the Ambassador car bearing registration No.KBV.5717. The investigation continued. An Advocate named V.Radhakrishnan had preferred Annexure-C petition dated 25.10.2008 before the court below seeking to obtain a report from the investigating officer with regard to the then stage of investigation. On Crl.M.C.5632/2014 : 2 : getting Annexure-C, a report was called for by the court below from the investigating officer. Thereupon, the investigating officer filed Annexure-B report. 2. In Annexure-B report, it was stated that, it was only a road traffic accident and the same had not occurred on account of the callousness or carelessness of the driver, who was driving the car bearing registration No.KBV.5717 and, therefore, the investigating officer had decided to refer the matter. The investigating officer had sought for permission from the Deputy Police Superintendent, Attingal for referring the matter, by submitting the factual report before him. 3. On getting the Annexure-B report, the learned Magistrate passed the following order on 09.02.2009:- _“Heard the Counsel. Perused the CD. I have gone through the statements of witnesses examined by the Police during the investigation. I am satisfied that the conclusion arrived at by the investigating officer is wrong._ Crl.M.C.5632/2014 : 3 : _Hence in view of the judgment of the Hon'ble Apex Court as SANJAY BANSAL v. JAWAHARLAL VATS [2008 (2) KLT SN 78 (SC)], cognizance is taken u/s.190(i)(b) Cr.P.C. u/s.279 and 304A IPC against the accused Sudhakaran Nair, S/o.Thankappan Nair, aged 52 years/2004, Kottara veedu, Near LP School, Mel-Kadakkavoor, Chirayinkeezhu Village (Sudhakaran Nair, S/o.Thankappan Nair, Confidential Assistant to Chief Engineer (P & CP), Civil Wing, KSRTC, Chief Office, East Fort, Thiruvananthapuram as CC.102/2009. Issue Summons to accused. For return of summons. Call on 28.3.2009.”_ 4. It has to be noted that as on 09.02.2009, any final report under Section 173(2) Cr.P.C., was not filed by the investigating officer. Even then, the court below has chosen to take cognizance of the offences under Sections 279 and 304A IPC under Section 190(1)(b) Cr.P.C. Annexure-D order sheet shows that subsequently, on 12.06.2012, the learned Magistrate had directed the prosecution to produce the copy of the refer charge. It is evident that even on that Crl.M.C.5632/2014 : 4 : date, the refer report was not filed under Section 173(2) Cr.P.C. Again, on 27.12.2012, the learned Magistrate directed the SHO to file the refer report. On 11.01.2013, the final report under Section 173(2) Cr.P.C. was filed. 5. Much discussion is not required to conclude that the learned Magistrate has committed a grave error in taking cognizance of the offences under Section 190(1)(b) Cr.P.C., without going through the final report under Section 173(2) Cr.P.C. On 09.02.2009, no final report was filed by the police under Section 173(2) Cr.P.C. The police report as contemplated under Section 190(1)(b) Cr.P.C. is the police report mentioned in Section 173(2) Cr.P.C. The learned Magistrate ought not to have taken cognizance of the offences with the aid of Section 190(1)(b) Cr.P.C., without a police report. The report called for by the learned Magistrate from the investigating officer regarding the then stage of investigation could not have been treated as a police report within the meaning of Section 173(2) Cr.P.C. or 190(1)(b) Crl.M.C.5632/2014 : 5 : Cr.P.C. Therefore, the taking of cognizance of the said offences by the learned Magistrate on 09.02.2009 was premature, and the same is not legally sustainable. 6. It seems that a private complaint was also filed by the wife of the deceased before the court below as CMP No.512/2012. The court below ought to have proceeded with either the final report filed by the police under Section 173(2) Cr.P.C. or CMP No.512/2012. Presently, the case is pending as CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal. The case as such has born from illegality and, therefore, all further proceedings in the present case are illegal. All further proceedings in CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal, are liable to be quashed. In the result, this Crl.M.C. is allowed and all further proceedings against the petitioner in CC No.102/2009 before the Judicial First Class Magistrate's Court-II, Attingal, which has arisen from Crime No.556/2004 of Kazhakoottom Crl.M.C.5632/2014 : 6 : Police Station, are quashed. It is made clear that it is open to the victim to have recourse to appropriate proceedings in accordance with law. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/19/02 _// True Copy //_ _PA to Judge_