STATE Vs. GOPAKUMAR

JUDGEMENT

(1.) This unfortunate and protracted case presents some novel positions. A senior I. A. S. Officer met with an accident on 27-6-1981 involving two automobiles and serious injuries to him. C. C. No. 134 of 1982 was charge sheeted before the Additional Judicial First Class Magistrate-II, Trivandrum against two persons for offences punishable under S.279, 337 and 338 of the Indian Penal Code and S.89(a) of the Motor Vehicles Act. When the case was pending trial, the Sub Inspector of Police, City Traffic (C.W. 15) submitted a report purporting to be under S.258 of the Code of Criminal Procedure requesting the Court to stop further proceedings since "In the peculiar circumstances of the case it is revealed that a re-investigation in the above is absolutely essential in the interest of justice". Though in bis order the Magistrate said "the report filed by the S.1 does not disclose any valid reason for conducting a re-investigation" and "The A.P.P. has not filed any report in this court showing the reason for conducting a re-investigation", be allowed the prayer stating "But since the counsel appearing for both the accused submitted that they are not opposing the report". He also released the accused under S.258 Crl. P.C.

(2.) Evidently S.258 was not the provision which bad to be relied on by the investigating officer or the Magistrate. S.258 is the provision to be applied in a summons case instituted otherwise than upon complaint (This is evidently such a case) in exceptional circumstances where the Magistrate thinks that the proceedings ought not to be continued under special and unusual situations which make it difficult or impossible to proceed in the normal way under S.254 and arrive at a finding on the guilt or innocence of the accused. The order under that section is one which could be passed by the Magistrate on his satisfaction alone without hearing the accused or the prosecution. The order could be passed at any stage and a judgment need not be pronounced. When the proceedings is stopped under the section two courses alone are open to the Magistrate. If it is after the principal witnesses are examined the only course is to pronounce a judgment of acquittal irrespective of the evidence. Otherwise the accused will have to be released and such release shall have the effect of discharge. That may bar a fresh prosecution for the same offence. The only course open to the investigating agency in this case was to submit further report or reports regarding further evidence provided such further evidence was obtained. That will not involve invoking the provisions of S.258. But these questions may not arise because the order of the Magistrate was set aside in Cr. M. C. 98 of 1984 filed by the de facto complainant and the case was remanded. The case was thus brought back to life.

(3.) The investigating agency thereafter filed a fresh report without any further investigation and without collecting any further evidence. On the original materials themselves a new report was filed deleting one accused and charge sheeting the other alone. The case was then taken to file as S. T. 4 of 1984. The sole accused then filed an application stating that the subsequent report is hit by S.167(5) of the Cr. P. C. and hence the cognizance is illegal Accenting that contention on the basis of the decision in David's case ( 1984 KLT 849 ) the Magistrate released the accused again under S.258 of the Cr. P. C. itself. That was by order dated 24-10-1984 which is challenged by the State in this revision. It is rather unfortunate that though Cr. M. C. 98 of 1984 was disposed of only on 9-4-1987 when this Cr.R.P. was pending that fact was not brought to the notice of the court so that both could have been disposed of together.