SAMUEL KUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the fifth accused in Crime No. 631 of 2004 of Kottarakkara Police Station and C.C. No. 1177 of 2009 of the court of learned Judicial First Class Magistrate-I, Kottarakkara for offences punishable under Sections 143, 147, 188 and 283 read with Section 149 of the Indian Penal Code. Prosecution case is that on 25.06.2004 about 15 employees including Petitioner took out a procession along public road in violation of the court order, refused to abide the direction of the Police Officials to disperse and caused obstruction to the vehicular traffic. After investigation, Police submitted Annexure-II, final report alleging that Petitioner and others committed offences as above stated. Since Petitioner was not available, coercive steps were initiated against him under Section 82 of the Code of Criminal Procedure (for short, "the Code") as per Annexure-IV, proclamation dated 21.02.2011 directing Petitioner to appear before the learned Magistrate on 24.05.2011. In the meantime, accused 1 and 2 faced trial in C.C. No. 573 of 2005 and they were acquitted mainly for the reason of want of identity. Case against other accused including Petitioner was refiled as C.C. No. 1177 of 2009. Petitioner is now abroad and challenges proceeding initiated against him under Section 82 of the Code as also Annexures-I and II, FIR and final report in the case to the extent it concerned him.

(2.) I have heard learned Counsel for Petitioner and the learned Public Prosecutor. Learned Counsel submitted that there is absolutely no material to show that Petitioner is involved in the alleged incident. At any rate, the proceeding initiated under Section 82 of the Code is illegal since it is not shown that summons or warrant issued to the Petitioner were served or could not be executed so that coercive steps are to be initiated. Learned Public Prosecutor submitted that there is no reason to interfere with the final report or the proceedings taken by the learned Magistrate.

(3.) So far as the request to quash Annexures-I and II, FIR and final report is concerned, it is seen that the final report was submitted on 25.05.2005. The question whether prosecution witnesses could identify Petitioner as one among the persons who allegedly were involved in the incident is a matter which the trial court has to decide. Having regard to the above circumstances I am not inclined to interfere with the matter so far as Annexures-I and II are concerned. The plea of alibi if any raised is a defence which Petitioner has to urge before the trial court and not in a proceeding under Section 482 of the Code.