THOMAS JOSEPH Vs. SUNEESH KUMAR R. AND

JUDGEMENT

(1.) THE petitioner is the Geologist attached to District Mining and Geology Department, Palakkad and he is facing indictment in C.C. No. 1098/2006 of the Judicial First Class Magistrate, Pattambi under Section 175 IPC. Annexure -VI summons has been issued to him pursuant to Annexure -VII complaint filed by the 1st respondent. It is with the prayer to quash Annexures -VI and VII that the above Crl.M.C. has been filed.

(2.) THE 1st respondent is the investigating officer in crime No. 219/2005 of Thrithala police station registered under Section 12(6) read with Section 20 of the Kerala Protection of River Banks and Regulation of Sand Removal Act, 2001 and Section 4(1) read with Section 21(1) of Mines and Minerals (Development and Regulation) Act, 1957 against one Sethumadhavan, Eranjikkavil house, Nhangattiri P.O., Pattambi and his wife Smt. Sheela. On 10.8.2005, while on patrol duty, the Sub Inspector of the said police station and party suspected illegal mining and removal of sand by the aforesaid persons and thereupon took into custody of the vehicles and materials employed for such mining and removal of sand and consequently registered the said case. During the investigation, the said accused persons revealed to the investigating officer that they had been conducting mining and removal of sand on the strength of valid permit No. 440/DOP/3184/05/A1 dated 5.8.2005 and other required documents issued from the office of the petitioner, pursuant to which Annexure -I notice was issued under Section 91 Cr.P.C. by the 1st respondent to the petitioner. The case of the prosecution as revealed from Annexure -VII complaint is that the petitioner has failed to appear in person and to produce the documents before the 1st respondent despite the receipt of Annexure -I notice. It was in these circumstances that Annexure -VII complaint was filed and upon which Annexure -VI summons was issued. The petitioner has admitted the receipt of Annexure -I notice and according to him, it is a notice requiring him to produce the licence and other related documents regarding the issuance of permit and licence to the accused persons in crime No. 219/2005 of Thrithala police station for verification. It is his further case that in compliance with the said notice he has produced the required documents through a special messenger before the office of the 1st respondent at 11 am on 22.8.2005. However, the 1st respondent refused to accept the same and consequently he had again sent the required details to the 1st respondent by registered post on 23.8.2005 and thus delivered up the required documents. In short, according to the petitioner, there was absolutely no intentional omission on his part to comply with the directions in Annexure -I notice and, therefore, Annexure -VII complaint is illegal and unsustainable and the learned Magistrate ought not to have taken cognizance thereon. It is, inter alia, with the said contentions he seeks quashing of Annexures -VI and VII as abuse of process of court. Admittedly, the petitioner is a public servant and he is legally bound to produce the documents required to be produced by the 1st respondent in discharge of his duty as investigating officer in the aforesaid crime. In this context, it is apposite to note, as evident from Annexure -I, that a crime was registered against the above named accused persons and the petitioner is not at all connected with the commission of the offence alleged against them. Annexure -VII complaint did not contain any such allegation against the petitioner. That apart, the tenor of Annexure -I would suggest that based on the assertions on the part of the said accused persons that they had been conducting mining and removal of sand on the strength of a valid permit and licence issued by the petitioner, the 1st respondent thought it fit to verify the veracity of the said assertions on their part. Evidently and essentially, it was for that purpose, that Annexure -I was issued requiring the petitioner to produce the permit and other related documents for permitting and authorising the said accused persons for mining and removal of sand. The recital in Annexure -I notice requires verbatim reproduction in this context.

(3.) THERE is no impediment at all for the court below to call for any document pertaining to the said crime either by suo motu or at the instance of the 1st respondent. In fact, going by the contention of the petitioner all the required details and documents have already been sent to the 1st respondent and perhaps it is for that reason that the 1st respondent has framed his complaint in such a way that the petitioner has failed to attend before him in person pursuant to Annexure -I. At any rate, after hearing both sides, I am not inclined to accept the contention on the part of the 1st respondent that the petitioner has intentionally omitted to carry out his directions in Annexure -I order and it will definitely go to show that he has actually complied with the directions and at any rate, there is no intentional omission going by the admitted facts.