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2013 DIGILAW 1081 (KER)

Santhosh v. State of Kerala

2013-12-04

P.BHAVADASAN

body2013
Judgment : 1. This is a petition filed under Section 482 of Cr.P.C. assailing the order dated 12.08.2009 in Crl.M.P. 157 of 2008 in S.C. No. 662 of 2006 whereby the court below dismissed the petition filed by the petitioner under Section 227 of Cr.P.C. seeking discharge. 2. The petitioner was an employee of Century Hospital, Mulakkuzha in Chengannur and so was also the complainant. The petitioner was working as a driver in the said hospital. On 14.05.2005, the second respondent before this Court laid Annexure B First Information Statement before the Station House Officer of the Chengannur Police Station who registered a crime as Crime No. 343 of 2005 for the offences punishable under Sections 328, 354 and 506(i) of IPC wherein the petitioner was shown as the sole accused. The allegation was that he had filled the water bottle in which the complainant used to bring water to drink with urine and made her to drink the same. He had also threatened her with dire consequences, if she revealed the fact to anybody. Further, it is also alleged that he has been continuously harassing her. 3. According to the petitioner, soon after the registration of the complaint, he was arrested and produced before the learned Magistrate concerned. To the learned Magistrate concerned, the petitioner pointed out that there were proceedings pending in the hospital regarding the same issue and the defacto complainant had filed a complaint to the Superintendent of the Hospital and that may be called for. The learned Magistrate proceeded to call for the documents and Annexure A was produced before the learned Magistrate with a covering letter produced as Annexure C. Thereafter, bail was granted to the petitioner as per Annexure D order. After investigation, final report was laid which is produced as Annexure F. 4. On getting summons, the accused entered appearance and the committal proceedings were completed. While the case was pending before the Assistant Sessions Court, Chengannur as S.C. No. 662 of 2006, the petitioner moved Crl.M.P.No. 157 of 2008 with a plea of discharge. Before the plea of discharge was made, the petitioner came across the Chemical Analysis Report which is produced and marked as Annexure H in this case. 5. While the case was pending before the Assistant Sessions Court, Chengannur as S.C. No. 662 of 2006, the petitioner moved Crl.M.P.No. 157 of 2008 with a plea of discharge. Before the plea of discharge was made, the petitioner came across the Chemical Analysis Report which is produced and marked as Annexure H in this case. 5. The contention taken by the petitioner was that in the light of the Chemical Analysis Report, Annexure H, no offence will lie because it clearly shows that the samples which were taken from the victim as well as the other sample did not contain any objectionable matter and the Ammonium Chloride was detected only from the sample of urine taken from the petitioner. In the light of the said finding, the petitioner contended that the offence under Section 328 cannot be proceeded with. As regards the offence under Section 354 of IPC, the petitioner contended that even assuming all what the prosecution says is true, no offence under Section 354 of IPC will lie. As regards the offence under Section 506(i), it is contended that the ingredients necessarily to attract the said offence are not found on the materials produced in support of the same. 6. Quite strangely enough, the court, on receipt of petition, seems to have called for a report from the Deputy Superintendent of Police, Chengannur and received the same. Mainly based on the report thus obtained, the court below without adverting to the materials on record and without adverting to the contentions raised by the petitioner, dismissed the petition. 7. The learned counsel appearing for the petitioner contended that the court below has misdirected itself both on facts and in law. It was unusual and improper on the part of the court to have obtained an enquiry report from the Dy.S.P. and to have proceeded to decide the issues on the basis of the same. The court, according to the learned counsel for the petitioner, seems to have accepted the suggestion of the officer concerned that the case is ought to be tried and without applying its mind to the issue agitated, has dismissed the petition. The learned counsel drew attention of this Court to Annexure H, the Chemical Analysis Report. It was pointed out that the test result obtained from Biology department shows that there were nothing obnoxious in the three samples subjected to analysis by the Biology Department. The learned counsel drew attention of this Court to Annexure H, the Chemical Analysis Report. It was pointed out that the test result obtained from Biology department shows that there were nothing obnoxious in the three samples subjected to analysis by the Biology Department. Referring to the Chemistry Department result, the learned counsel pointed out that Ammonium Chloride is alleged to have been detected in MO1 which is shown as item 1 in the report. That MO1 item 1 is the urine collected from the accused i.e., the petitioner and that alone is alleged to have contained Ammonium Chloride whereas the samples taken from the bottle given by the victim as well as one small bottle did not contain Ammonium Chloride or any obnoxious matter. In the light of this report, it was contended that no offence is made out. 8. The view taken by the court below that no reasons need to be given for framing charges and may be technically correct but it does not mean that it does not have to apply its mind to the materials on record to find out whether prima facie offence is made out or not. In the case on hand, the court below has simply gone on the basis of a report called for by the learned Magistrate behind the back of the petitioner. Officer concerned is opined that the charge should be framed and the case should be tried. One fails to understand how the report could have been obtained and what is the basis on which the court below accepted that report and decided to frame charges. One could have understood the acts of the court if it has mentioned that after going through the materials produced along with the final report, the court is satisfied that there are grounds to proceed with, in which case, the matter would have been different. It is clear that the court has not applied its mind on the materials produced along with the final report, especially, the Chemical Analysis Report which prima facie would show that it goes in favour of the petitioner. There has not been consideration of the relevant materials in considering whether a charge could be framed and in fact, totally irrelevant aspects have been taken into consideration and relevant materials omitted to be taken note of. The order cannot be sustained and has necessarily to be set aside. There has not been consideration of the relevant materials in considering whether a charge could be framed and in fact, totally irrelevant aspects have been taken into consideration and relevant materials omitted to be taken note of. The order cannot be sustained and has necessarily to be set aside. 9. For the above reason, the order is set aside and the matter is remanded to the court below for fresh consideration, in accordance with law, in the light of what has been stated above. The petitioner shall appear before the court below on 20.12.2013. Personal appearance is dispensed with for the time being. Send back the records along with a copy of this order forthwith.