ELSY VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner was proceeded as the accused in Crime No. 1765 of 2009 of Kothamangalam Police station for offences punishable under S.279, S.337 and S.338 of the Indian Penal Code. After completion of the investigation, final report was filed indicting her for the aforesaid offences. Cognizance of offences taken on the report, the case was numbered as ST No. 1377 of 2010 on the file of the Judicial First Class Magistrate Court, Kothamangalam. Petitioner contended that she was not the driver of the vehicle involved and it was driven by someone else. She assailed the final report before this Court filing a writ petition. That petition was disposed directing further investigation of the case. After such further investigation, a final report was filed indicting another person alleging that he drove the offending vehicle and thus cognizance of the offence taken on such report, but, given a new number of the case, ST No. 7284 of 2011, and summons issued to the accused person therein, viz., Shibu appeared and pleaded guilty. He was convicted and sentenced by the learned Magistrate. However, the learned Magistrate proceeded to continue the trial against the petitioner which was taken cognizance on the report filed earlier, before further investigation was ordered by this Court under Annexure 3 judgment. In the aforesaid circumstances, petitioner has filed this petition to quash the criminal proceedings against her invoking S.482 of the Code of Criminal Procedure, for short, the 'Code'.

(2.) A report was called for from the learned Magistrate to explain the circumstances under which a new number was assigned to the case when already on the basis of the previous report, the case was given a number on the file of his Court. Since the report sent was not satisfactory, a further report was called for. With the subsequent report, the learned Magistrate has forwarded a copy of the order passed by his predecessor, by which, on the supplementary report filed in the case, after further investigation, he took cognizance of the offence against the accused named in such report assigning the case number ST No. 7284 of 2011. There is nothing more in the second report filed by the learned Magistrate otherwise than that it is accompanied by the order as aforesaid passed by his predecessor. Circumstances presented in the case are highly disturbing. Even after reports were called for, more than once, evidently, the learned Magistrate has not cared to go through the case records and forward a report explaining how the case against the petitioner was proceeded with when on a supplementary report filed, after further investigation in the crime, another accused was shown as culpable for causing the motor accident by his rash and negligent driving of the motor vehicle and after cognizance being taken of the offence against him on such report, he was convicted recording his plea of guilt. The learned Magistrate has to take note that when a report is called for by this Court with specific queries which should be answered with clarity after examining the case records. He is expected to send over an order passed by his predecessor under the impression that nothing more is required on his part and that too in a case where if he had cared to go through the case records, he would have noticed that further proceedings against the petitioner on the basis of the cognizance of the offences taken on a previous report filed by the police, whatever be the order passed by his predecessor to do so, cannot be continued with as it is per se illegal. In case the learned Magistrate felt any defect on account of the previous order passed by his predecessor, in the given facts of the case, he should have made a request to the Chief Judicial Magistrate to send a reference to this Court to consider the quashing of the proceedings invoking its inherent powers under S.482 of the Code. The crime registered by the police in the case related to the rash and negligent driving of a motor vehicle by its driver causing injury to another. When on the basis of the supplementary report the accused named proceeding on such report on his plea of guilt was convicted and sentenced, the petitioner who was proceeded imputing of such offence on the previous report of the police could not have been prosecuted for the same offence. Strangely enough, the learned Magistrate, before whom the supplementary report was filed, has passed an order that in such report another person has been named as the accused is no ground to stop the proceedings against the petitioner. The order passed by the learned Magistrate would show that after taking cognizance against the accused persons named in the supplementary report, he ordered for issuing summons to the charged witnesses named in the previous report, on which, cognizance of the offence was taken against the petitioner as the accused in such report. What was the nature of the offence involved and whether more than one person could be prosecuted as the driver who had driven the vehicle rashly and negligently causing injury to another person was not even taken note of by the learned Magistrate when it passed the orders as above. If at all he deferred from the conclusion of the police in the supplementary report, the cause of action as could be expected from him under law is different. Once after accepting the supplementary report and taking cognizance against the accused persons named therein the question of proceeding against the petitioner, the accused named in the previous report, in the given facts of the case and circumstances involved and also the nature of the offence imputed, was impermissible. An order of discharge / acquittal as required in favour of the petitioner should have straight away followed when cognizance was taken on the supplementary report against the accused person named therein as the person culpable for driving the motor vehicle rashly and negligently and thus causing the offence imputed against him. Continuation of the proceedings against the petitioner after cognizance of the offence was taken on the supplementary report against the accused persons named therein in respect of the motor accident involved was not only irregular but illegal. To take a view that since the petitioner was proceeded with earlier even after taking cognizance of the offence involved in the motor occurrence against another on the supplementary report, she too has to be tried in the case, is patently unsustainable. Criminal proceedings against the petitioner in ST No. 1377 of 2010 on the file of the Judicial First Class Magistrate Court, Kothamangalam, in the circumstances indicated above, shall stand quashed snipe her plea to the charges imputed has been recorded. She shall stand acquitted of the offences.