The High Court of Kerala dismissed a petition to quash prosecution under Section 482 Cr.P.C. The court held that the trial court's procedural irregularity of not recording pre-charge evidence was corrected by the magistrate, so the prosecution need not be quashed.
Petition disposed of; liberty granted to seek discharge at the right stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941
Crl.MC.No.2129 of 2019
AGAINST THE ORDER/JUDGMENT IN CC 764/2014 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM
CRIME NO.1210/2016 OF Ernakulam South Police Station , Ernakulam
PETITIONER/ACCUSED:
JAYADHAR V., AGED 57 YEARS S/O VAIDHYADHARAN, OCHAYIL HOUSE, KANJAVALLIKKARA, THRIKKARUVA, KOLLAM DISTRICT, RESIDING AT OCHAYIL HOUSE, 7 B, AVARAN PASS APARTMENT, MALIYEKKAL ROAD, THEVARA, COCHIN.
BY ADV. SRI.M.T.SURESHKUMAR
RESPONDENT/STATE:
2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KERAKULAM 682 031.
BY ADVS.
SRI.S.NIRMAL KUMAR SRI.SUJITH AJAYAN
OTHER PRESENT:
SRI SANTHOSH PETER-SR PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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O R D E R
The petitioner herein is the sole accused in C.C. No. 764 of 2014 of the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam, involving the offences under Sections 341, 323, 294(b) and 506(ii) of the Indian Penal Code. Cognizance was taken by the trial court on the complaint made by the first respondent herein. Though he alleged the offence under Section 326 IPC also, the trial court found, on enquiry under Section 200 Cr.P.C., that as regards the assault, only the offence under Section 323 is made out. When the trial court adopted a wrong procedure, the accused approached this Court under Section 482 Cr.P.C., to quash the whole prosecution.
2. The case was posted for pre-charge evidence under Section 244 Cr.P.C. in the trial court. On 04.01.2019, before and without recording evidence under Section 244 Cr.P.C., the learned
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Magistrate recorded that warrant trial is not necessary, and accordingly, posted the case for recording the plea of the accused. This illegal procedure is now challenged. When this Court called for explanation from the trial court for such a procedure, the learned Magistrate realized the mistake, and tendered apology. Now the irregularity in procedure stands corrected by the learned Magistrate, and the case would go for pre-charge evidence under Section 244 Cr.P.C.. On the said ground, the whole prosecution cannot be quashed. The petitioner can proceed with the petition only if there is some other ground to quash the prosecution, or to convince the court that continuance of proceedings will be an abuse of legal process. Cognizance was taken by the trial court after considering the materials furnished by
the complainant under Section 200 Cr.P.C.. When the irregularity in procedure stands corrected, the
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accused cannot have any grievance on this ground before this Court.
3. On a perusal of the materials, I find no reason to quash the case under Section 482 Cr.P.C. at this stage. The complainant is yet to adduce pre-charge evidence under Section 244 Cr.P.C. The accused can very well cross examine the complainant, and even after framing charge, the accused will get such an opportunity. Anyway, the accused has an option now to seek discharge after Section 244 evidence is recorded. I find no reason
to quash the whole prosecution at this stage.
Thus, giving liberty to the petitioner to seek discharge at the right stage, this petition is
disposed of.
Sd/-
Ds 10.07.2019
P.UBAID JUDGE
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APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE COMPLAINT DATED 18.10.2016 FILED BY 1ST RESPONDENT
ANNEXURE A2 TRUE COPY OF THE STATEMENT OF THE COMPLAINANT WHICH IS RECORDED BY THE LEARNED MAGISTRATE UNDER SECTION 200OF THE CODE OF CRIMINAL PROCEDURE ON 27.10.2016
ANNEXURE A3 TRUE COPY OF THE STATEMENT OF THE 2ND WITNESS RECORDED BY THE COURT BELOW UNDER S 200 DATED 28.11.2016
ANNEXURE A4 TRUE COPY OF THE STATEMENT OF THE 3RD WITNESS RECORDED BY THE COURT BELOW UNDER S.200 DATED 28.11.2016
ANNEXURE A5 TRUE COPY OF THE B DAIRY OF THE ADDL. CJM (EO) ERNAKULAM UP TO 4.1.2019
ANNEXURE A6 TRUE COPY OF THE FIR AND FIS IN CRIME NO 1210 OF 2016 16.9.2016
ANNEXURE A7 TRUE COPY OF THE FINAL REPORT INC RIME NO 1210 OF 2018 OF ERNAKULAM TOWN SOUTH POLICE STATION
ANNEXURE A8 COPY OF THE SCAN REPORT OF GENERAL HOSPITAL ERNAKULAM DATED 19.9.2016 OF THE LEFT SHOULDER OF THE PETITIONER
ANNEXURE A9 COPY OF MRI SCAN REPORT OF THE RIGHT SHOULDER OF THE PETITIONER DATED 30.11.2016
ANNEXURE A10 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 20.2.2019 IN CRL MC NO 1038 OF 2019
1 issue framed by the court
Whether the trial court's failure to record pre-charge evidence under Section 244 Cr.P.C. before deciding that a warrant trial is not necessary warrants quashing the prosecution under Section 482 Cr.P
2 provisions across 1 enactments
JAYADHAR V.
SANTHOSH D. PUTHEN VEETTIL
STATE OF KERALA
P. UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
