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SURESH, S/O. SIVADASAN versus STATE OF KERALA

High Court of Kerala

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SURESH, S/O. SIVADASAN v. STATE OF KERALA - Crl MC No. 594 of 2007 [2007] RD-KL 8371 (23 May 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 594 of 2007()

1. SURESH, S/O. SIVADASAN,
... Petitioner

Vs

1. STATE OF KERALA,
... Respondent

For Petitioner :SRI.S.SANAL KUMAR

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :23/05/2007

O R D E R

R.BASANT, J.

Crl.M.C.No.594 of 2007

Dated this the 23rd day of May 2007

O R D E R

The petitioner is the third accused in a prosecution under the provisions of the Kerala Abkari Act. In the F.I.R registered, only one accused was shown. In the course of investigation, accused 2 and 3 were also arrayed as accused. Initially, the allegation was that accused 1 had committed the offence. In the course of investigation, it is revealed that another person (A2) by name Ponnappan and his nephew (A3) by name Suresh S/o.Sivadasan were also guilty. In the course of the investigation, report was filed to array additional second and third accused. They were thus arrayed as accused. After investigation, final report was filed against three accused persons (A1 to 3). The third accused, Suresh was described as

"Suresh S/o.Sivadasan, Puthenkandathil house, aged 25, residing at Kizhakkekkara thekkummuri of Thrikkunnappuzha village. Accused 2 and 3 were shown as absconding. After taking cognizance, attempts were made by the learned Magistrate to get the service effected on the third accused. Summons issued Crl.M.C.No.594/07 2 to the third accused was returned with the endorsement that such a person could not be traced. The learned Magistrate called for explanation of the police officer concerned. At that stage, it was reported to the learned Magistrate that there was a mis description in the address of the third accused. It was really Suresh S/o.Sivadasan of Kochuveettil Puthuval of Mahadevikadu Muri of Karthikappalli village. The process issued in that address was served on the petitioner. The petitioner has thereupon come to this court complaining that he is not the real third accused and that he has now been arrayed as the third accused belatedly by the officials without any justification.

2. The counsel points out that initially there were no allegations raised against the petitioner. The petitioner is not the person arrayed as third accused. When the court called for explanation, conveniently the petitioner has been arrayed as the third accused. This is incorrect. This is unjust. Powers under Section 482 Cr.P.C may be invoked to prematurely terminate the proceedings against the petitioner. This, in short, is the plea.

3. The learned Public Prosecutor was directed to take instructions. The learned Public Prosecutor has got a statement filed by the Sub Inspector of Police, Thrikkunnappuzha police Crl.M.C.No.594/07 3 station. It is submitted that there is no incongruity or confusion about the identity of the third accused. The third accused is Suresh S/o.Sivadasan, the petitioner herein. It is true that there is confusion about the address of the third accused. The confession statement of the first accused revealed that a neighbour Ponnappan and his nephew Suresh S/o Sivadasan were accused 2 and 3. What is crucial according to the learned Public Prosecutor is the fact that the third accused is described to be the nephew of the second accused. There is no confusion regarding the identity at all though there is a mis description of the address of the third accused. A mountain is attempted to be made out of such a mole hill of inaccuracy of address shown of the third accused. Identity of the person is without any basic dispute. The third accused is the nephew of the second accused who is a neighbour. In these circumstances, notwithstanding the error in not describing the address of the third accused correctly in the initial documents and notwithstanding the return of the summons issued to the third accused in the original incorrect address with the endorsement that such a person does not exist, powers under Section 482 Cr.P.C may not be invoked, submits the learned Public Prosecutor. Crl.M.C.No.594/07 4

4. I have considered all the circumstances. I must alertly remind myself that I am called upon to exercise the extraordinary inherent jurisdiction under Section 482 Cr.P.C. Such jurisdiction is to be invoked sparingly and in exceptional cases and that too only in aid of justice. Crucial question is whether there has been failure of justice. The case diary has been perused by me. Though the existence of the second and third accused is not mentioned in the F.I.R and in the seizure mahazer, it is evident that from the confession of the first accused, the culpable involvement of the second and third accused was ascertained and the third accused was described to be the nephew of the second accused, a neighbour. The witnesses had identified the petitioner, third accused with reference to his name and address only. In the name given, he was shown as Suresh S/o.Sivadasan which is correct. But of course, there is an incongruity in the address shown. This incongruity, by itself, according to me, cannot clinch the issue at this stage. Of course, at the stage of trial, it will be open to the petitioner to raise his contention that he is not the person who is shown as the third accused. But, at any rate, that contention will have to be considered and decided in the course of the trial. Crl.M.C.No.594/07 5

5. I do not intend to express any opinion on merits about the culpability of the petitioner, third accused. But I am satisfied that the mere incongruity in the address shown of the third accused in the final report and later in the report submitted by the Sub Inspector of Police after the summons was returned unserved (to issue process in the correct address) cannot by itself persuade this court to invoke the powers under Section 482 Cr.P.C.

6. The learned counsel for the petitioner finally submits that in view of the confusion about the address, the petitioner has not so far surrendered before the learned Magistrate. The petitioner apprehends that when he appears, his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is, in these circumstances, prayed that appropriate directions may be issued in the matter by this court.

7. I am of the opinion that no specific directions need be issued. The petitioner can appear before the learned Magistrate and apply for bail. I find absolutely no reason to assume that the learned Magistrate would not consider the application for bail to be filed by the petitioner on merits, in accordance with Crl.M.C.No.594/07 6 law and expeditiously. Every court must do the same. No special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs.Deputy Superintendent of Police [2003(1)KLT 339].

8. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioner surrenders before the learned Magistrate and applies for bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. I may hasten to observe that no observation in this judgment shall be reckoned as indicative of the culpability of the petitioner or that he is the person described in the initial documents as the third accused. Those contentions must be considered in the light of the materials to be placed before the learned Magistrate in the course of trial.

(R.BASANT, JUDGE)

jsr // True Copy// PA to Judge Crl.M.C.No.594/07 7 Crl.M.C.No.594/07 8

R.BASANT, J.

CRL.M.CNo.

ORDER

21ST DAY OF APRIL 2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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