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2016 DIGILAW 523 (KER)

Vijayan v. State of Kerala

2016-06-17

B.SUDHEENDRA KUMAR

body2016
ORDER Bhaskaran Pillai Sudheendra Kumar, J. 1. The petitioner is the accused in CC No. 268 of 2011 on the files of the Court of the Judicial Magistrate of First Class, Vadakara. The prosecution allegation can be briefly stated as follows: The charge witness Nos. 1, 3, 4 and 5 sustained injuries, both simple and grievous, on account of the collapse of a bridge on 02/07/2010. The petitioner was the Assistant Executive Engineer, Kuttiyadi Irrigation project during the relevant period. It is alleged that the incident occurred on account of failure on the part of the petitioner to make periodical maintenance of the bridge. On the said allegation, the charge was filed by the police before the Court below under Sections 337 and 338 IPC. 2. After the appearance of the petitioner before the Court below, the substance of accusation was read over and explained to the petitioner by the Court below, to which the petitioner pleaded not guilty. Thereafter, the Court below issued summons to the prosecution witnesses. At that time, the petitioner filed CMP No. 9358 of 2013 seeking for stopping the proceedings under Section 258 of the Code. The Court below as per the order impugned, dismissed the said petition. Aggrieved by the said order, the present petition has been filed. 3. Heard the learned counsel for the petitioner Sri. Kaleeswaram Raj and the learned Public Prosecutor, Smt. Jasmine V.H. 4. The learned counsel for the petitioner has submitted that the finding by the Court below that the Court below had no jurisdiction to terminate the proceedings after recording the plea of the petitioner in view of the decision of the Apex Court in Adalat Prasad v. Rooplal Jindal 2004 KHC 1137: (2004) 7 SCC 338 : 2004 (3) KLT 382 : 2004 (2) KLJ 727 : AIR 2004 SC 4674 : 2004 Cri.L.J. 4874, cannot be correct as the Apex Court in that case was dealing with the proceedings initiated in a summons case instituted upon a complaint and not upon a police report as in the present case. It has been further submitted by the learned counsel for the petitioner that Section 258 of the Code empowers the Court to stop the proceedings at any stage without pronouncing any judgment and when such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, the Court has to pronounce the judgment of acquittal and in any other case, release the accused, and such release shall have the effect of discharge. It is clear from Section 258 of the Code that the said provision is applicable only in the case of a summons case instituted otherwise than upon a complaint. The present case was instituted upon a police report. Therefore, the present case is a summons case instituted otherwise than upon a complaint. Therefore, Section 258 of the Code is clearly applicable to the case in hand. It is clear from Section 258 of the Code that the Court is having the power to invoke the provisions under Section 258 of the Code even after the evidence of the principal witnesses has been recorded. 5. In Adalat Prasad v. Rooplal Jinda 2004 KHC 1137 : (2004) 7 SCC 338 : 2004 (3) KLT 382 : 2004 (2) KLJ 727 : AIR 2004 SC 4674 : 2004 Cri.L.J. 4874, the Apex Court held in paragraph No. 15 as follows: "It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of the Code." 6. Hence in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of the Code." 6. In Urmila Devi v. Yudhvir Singh 2013 KHC 4889 : (2013) 15 SCC 624 : 2013 (13) SCALE 513, the Apex Court held that the order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 of the Code would be an order of intermediatory or quasi-final in nature and not interlocutory in nature and hence the revisional jurisdiction provided under Section 397 of the Code can be worked out by the aggrieved accused. It was further held by the Apex Court in Urmiladevi (supra) that such an order of a Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 of the Code can always be subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 of the Code. 7. It is clear from the above ratio laid down by the Apex Court that in a summons-case, the Magistrate has no jurisdiction to discharge the accused after his appearance before the Court in response to the summons issued by the Court in exercise of the power under Section 204 of the Code. The remedy available to the aggrieved accused in such a situation is to challenge the order of the Magistrate deciding to summon the accused in exercise of his power under Section 204 of the Code by approaching the High Court or the Sessions Court invoking the revisional jurisdiction under Section 397 of the Code or approaching the High Court invoking the inherent jurisdiction under Section 482 of the Code. 8. It is clear from a bare reading of Section 258 of the Code that in a summons-case instituted otherwise than upon a complaint, the Magistrate can stop the proceedings at any stage in appropriate cases. The above discussion would make it clear that the remedy of an aggrieved accused in a summons case instituted upon a police report is to approach the Court concerned under Section 258 of the Code in appropriate cases. In a summon case instituted otherwise than upon a complaint, the Magistrate has jurisdiction to stop the proceedings under Section 258 of the Code at any stage of the proceedings. In a summon case instituted otherwise than upon a complaint, the Magistrate has jurisdiction to stop the proceedings under Section 258 of the Code at any stage of the proceedings. The present case was instituted upon a police report. Therefore, the ratio in Adalat Prasad (supra) and Urmiladevi (supra) is not attracted to the case in hand in view of the provisions of Section 258 of the Code. For the said reason, the Court below was not justified in holding that the Court below had no right to stop the proceedings as provided under Section 258 of the Code in the present case. The learned counsel for the petitioner has submitted that even though it was argued before the Court below that there was no ingredient at all to constitute the offence under Sections 337 and 338 IPC against the petitioner, the Court below did not consider that aspect. It was further argued that eventhough the requisite sanction under Section 197 of the Code was not obtained before prosecuting the appellant, that aspect was also not considered by the Court below as the Court below had entertained the belief that the Court below had no power to drop the proceedings on any ground in view of the ratio in Adalat Prasad (supra). Since the Court below did not consider the above contentions advanced before the Court below by the learned counsel, I am of the view that it is only just and proper to direct the Court below to consider the matter afresh. For the said reason, the order impugned cannot be sustained and consequently, I set aside the same. In the result, this petition stands allowed, setting aside the order impugned and the matter is remitted to the Court below for fresh consideration of CMP No. 9358 of 2013 in accordance with law, affording reasonable opportunity to the petitioner of being heard. The petitioner shall appear before the Court below on 28/07/2016 without further notice.