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  Judgement - 10KLC-3698
 
   
   
 

Before V.Ramkumar, J
Tuesday, The 20th July 2010/ 29th Ashadha 1932

Party Array / Case No.


N THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 2125 of 2010()


1. RAMESAN, S/O.GOPALAN, AGED 42,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.SHERRY J. THOMAS

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :20/07/2010

Judgement



     I
     O R D E R
                                                                                  CR


                               V.RAMKUMAR, J.
                         ..............................................
                         Crl.M.C. Nos. 2125 of 2010
                         ..............................................

                     Dated this the 20th day of July, 2010

                                         ORDER


          In this petition filed under Sec. 482 Cr.P.C. the petitioner who

    is the accused in Crime No. 446 of 2010 of Panangad Police Station

    seeks to quash the proceedings before the Court of the Addl. Chief

    Judicial Magistrate, (ACJM for short), Ernakulam, on the ground that

    the said proceedings have been commenced                    pursuant to Annexure -

    A1 notice issued by the Sub Inspector without any authority.

          2.    The interesting questions which arise for                      judicial

    resolution in this case are :

           a)    What is a "petty offence" ? ?

           b)    Is the Officer- in-charge of a police station entitled to
                 summon an accused person                     to a criminal court to
                 answer a charge against him in a case treated as a
                 petty case ?

                       THE BACKGROUND FACTS


           3.   The facts leading to           the filing of this petition can be

    Crl.M.C. Nos. 2125 of 2010             -:2:-


    summarised as follows:-

                       The petitioner aged 42 years and residing at Maradu

             near Vyttila, Ernakulam claims to be the sole breadwinner of

             his family. He is running a small shop near Maradu junction

             where he is doing repair of electronic goods. In the night of

             23-2-2010 after closing his shop the petitioner was rushing

             home on his scooter bearing Reg. No. KL 39-7203 along the

             the Kundannur-Petta road. The time was 10.20 in the night.

             The Sub Inspector of Police, Panangad was conducting a

             routine check of vehicles near Maradu junction.         It was

             after passing through the        above checking site   that the

             petitioner reached home . According to the petitioner after an

             hour of his reaching home the police came there       and took

             him into custody. But according to the Sub Inspector of

             Police, the petitioner who came on his scooter in a rash and

             negligent manner after consuming alcohol did not stop the

             two-wheeler         when the A.S.I. signalled him to stop and

             since the petitioner drove away the vehicle disregarding and

             disobeying the directions of the A.S.I and, he was taken into

             custody. It is the case of the petitioner that eventhough he

             pleaded that he was innocent         and he had not consumed

             alcohol, his entreaties fell on deaf ears and he was taken to

             the police station and a case registered against him as Crime

             No. 446 of 2010. He was, thereafter, released on bail with

             two sureties. The petitioner was served with Annexure - A1

    Crl.M.C. Nos. 2125 of 2010             -:3:-


             notice calling upon him to        appear before the Court of the

             ACJM at 11 a.m. on 10-5-2010.            The F.I.R. which was

             despatched        to the Magistrate reached the Court    of the

             ACJM , Ernakulam on 25-3-2010.           Subsequently, the S.I.

             Panangad sent a report to the ACJM to the effect that        the

             allegation in the F.I.R. that the accused had consumed alcohol

             was mistakenly incorporated in the F.I.R. On 24-6-2010 the

             Sub Inspector filed a charge-sheet before the ACJM against

             the accused alleging offences under Sections 279 I.P.C. and

             132 read with 179 of the Motor Vehicles Act, 1988 ("the

             M.V. Act" for short) . Along with the charge, the Sub

             Inspector produced the served copy of Annexure A1 notice

             issued to the accused. A report was also submitted along with

             the charge to the effect that eventhough the Sub Inspector had

             issued a notice to the accused to appear before Court on 10-5-

             2010, due to certain urgent duties he could not file the charge-

             sheet in time. The learned Magistrate took the case on file as

             S.T. 5622 of 2010 for the aforementioned offences and has

             posted the case to 26-7-2010 for the appearance of the

             accused. It was in the meanwhile that the petitioner filed the

             present petition before this Court.


             4.      I heard the learned counsel for the petitioner and the

    learned Public Prosecutor.

             5.        Since    this Court was prima facie of the view that

    Crl.M.C. Nos. 2125 of 2010           -:4:-


    the Sub Inspector had absolutely no authority to summon an

    accused person             to the Magistrate's Court, the Sub Inspector

    was directed to appear before this Court to reveal his authority, if

    any,       to issue such a notice.     The Sub Inspector appeared and

    placed         reliance     upon   a Circular issued by the           Police

    Department as Circular No. 11/1972 to justify his action :-

                          JUDICIAL RATIOCINATION

             6.     Annexure A1 notice in vernacular Malayalam and its

    English translation are as follows:-

                                        NOTICE

        To

               ,Age 42/10
             S/o.           ,
     (H),



                   23-3-2010  10.20P.M.   Maradu

                   10-5-2010     11
        ACJM       .

                                :
             Cr.446/10
                              U/s.289I.P.C.&132(1)readwithSec.179M.V.Act

                  SignatureofRamesan
                                                                   (Signature)
                                                               S.I.Panangad

    Crl.M.C. Nos. 2125 of 2010                  -:5:-


                          TRANSLATION OF ANNEXURE A1

                                           NOTICE


             To,

                    Remesan, Age 42/10

                    S/o.Gopalan

                    Niravath (H), Maradu

                    Ernakulam

                       It has been made to appear that you have committed the offences

             mentioned below on 23-3-2010 at 10.20 p.m. at Maradu. You are

             directed to appear before the ACJM Court, Ernakulam at 11 0' clock on

             10-5-2010 to answer the charge in the aforesaid petty case.

                            Offence:- U/s. 279 I.P.C. & 132 (1) r/w 179 M.C. Act.

                    Cr.446/10


                  SignatureofRamesan

                                                                    (Signature)

                                                                    S.I. Panangad

             7.      It is shocking to find that a Station House Officer has

    dared to issue notice to the accused summoning him to the

    Magistrate's Court to answer a charge for the offences indicated

    therein.        Still more startling is the conduct of the Sub Inspector

    in taking umbrage at the               proceedings       taken against him      and

    coming out with              a Circular having absolutely              no relevance,

    application or sustainability. The Circular relied on by him reads

    as follows:-

    Crl.M.C. Nos. 2125 of 2010                     -:6:-




                                       Circular No. 12/72

                 No D2-78326/70 Dated 08-02-72

                             Sub:   Notice to accused concerned in petty offence to
                             appear before court on a stipulated date - Issuing of by
                             police to expedite disposal of cases in courts.

                          On the initiative of this department         the Dist. Magistrate
                 (Judicial), Trivandrum sent round a proposal to all the Magistrates in
                 Trivandrum District requesting them to consider the feasibility of
                 adopting the procedure of issuing notices by Police to the accused
                 concerned in petty offences as and when such offences were detected by
                 them, so that the accused might appear before the courts concerned on
                 a stipulated date. If the Police file the case in the court sufficiently in
                 advance of the date fixed, it will enable the Magistrate to dispose of
                 most of the petty cases on the first posting date itself.

                          The District Magistrate, Trivandrum convened a conference of
                 Police Officers and Magistrates in the Trivandum City on 19-03-1971 in
                 his Chamber and held discussions in the matter.            The procedure
                 suggested as accepted by all who attended the conference.

                          In all cases of this nature, where the accused would willingly
                 like to have a quick disposal of the cases against them and in such other
                 cases where it is feasible to do so, the Police Officers who detect the
                 cases could get notices served on the accused for their appearance on
                 pre-arranged dates before the concerned Magistrates. Police Officers
                 could also produce the notices along with petty charge reports before the
                 Magistrates mentioning about this fact in the reports. Sufficient time
                 can be allowed in the notices for appearance so that the Magistrates
                 could post the cases to the dates fixed in the notices. It is also
                 suggested that not more than 25 cases may be got posted or taken to the
                 Magistrate on any one date.
                          CP/SPs of other Districts will make similar reciprocal
                 arrangements in their Districts through their Dist. Magistrates (Judicial)
                 to see that the procedure accepted by the Magistracy of Trivandrum
                 could be followed there also.


             8.       In the first place, the above Circular , even if it survives

    the new Code (the Code of Criminal Procedure, 1973), applies only

    Crl.M.C. Nos. 2125 of 2010              -:7:-


    to "petty offences" . Secondly, it was an arrangement made by means

    of administrative instructions in a conference convened by the Chief

    Judicial Magistrate (District Magistrate (Judicial) of Trivandrum, for

    expeditious disposal of "petty offences"               by the Magistrates in

    Trivandrum District only. Thirdly, such executive instructions which

    are contrary to the provisions of law cannot           legalise the procedure

    given thereunder. The above Circular was issued by the Police

    Department at a time when             Executive Magistrates were     invested

    with judicial powers as well. But under the present Code there is a

    clear separation of the Judiciary from the Executive.           No executive

    instruction can take away or abridge the power of the Magistrate

    to issue process           for summoning    an accused person to answer     a

    charge for a criminal offence alleged to have been committed by him.

    The said power of the Magistrate under Sec. 204 Cr.P.C.             generally

    and under Sec. 206 (1) in the case of petty offences cannot be

    delegated          by him to the police nor can any police officer arrogate

    to himself            the said power which is      exclusively  vested in the

    Magistrate.             In Ajay Kumar Bhuyan v. State of Orissa - 2003

    (1) SCC 707 the Apex Court repelled a plea urged on behalf of the

    State of Orissa that administrative instructions issued by the State

    Government under the Orissa Police Manual, 1940                  were having

    statutory force. It was held that they were only authoritative guides

    for the officers of the Police Department and could not be termed as

    statutory rules            constituting "existing law" within the meaning of

    Article 313 of the Constitution of India.          In Punjab Water Supply

    Crl.M.C. Nos. 2125 of 2010               -:8:-


    and Sewerage Board v. Ranjodh Singh - AIR 2007 SC 1082 the

    Supreme Court observed as follows:-

                     "Any departmental letter or executive instruction

                     cannot      prevail   over   statutory  rule     and

                     constitutional provisions".


    It was submitted before me that            the Tripunithura Wing of the City

    Traffic Police Station, Kochi, is also issuing similar notices and the

    matter is pending consideration in a Writ Petition before this Court .

    Dealing with a notice issued by the Sub Inspector of Police, City

    Traffic Police Station, Thiruvananthapuram, similar to Annexure - A1

    notice, a learned Judge of this Court (M.Sasidharan Nambiar, J.)

    observed in Crl.M.C. 711 of 2010 as follows:-

                       "4. Annexure-A2 is a notice issued by the Sub Inspector

                       directing the petitioner to appear before the Magistrate.

                       If petitioner has committed an offence under Section 279

                       of Indian Penal Code, the learned Magistrate has to take

                       cognizance of the offence only on a final report submitted

                       by the police.      If cognizance is taken, it is for the

                       Magistrate to issue summons to the petitioner. The Sub

                       Inspector is not to direct the petitioner to appear before

                       the Magistrate, even before taking cognizance. Even after

                       a final report is submitted, it is for the Magistrate to

                       decide whether cognizance is to be taken or not and even

                       if to be taken, for what all offences.

    Crl.M.C. Nos. 2125 of 2010                -:9:-


                               In   such   circumstance,    petition   is  allowed.

                       Annexure-A2 notice is quashed. If the learned Magistrate

                       takes cognizance, and summons is issued, petitioner is at

                       liberty to raise all the contentions before the Court."

             I am in respectful agreement with the above observations and

    conclusion.            Annexure A1 notice issued by the Sub Inspector of

    Police was, therefore, clearly illegal and unauthorised. It would not

    have been objectionable if the Sub Inspector were to direct the

    petitioner to appear before the Court as and when he                   received

    summons from the Court.

             9.         I now proceed to consider the question as to which all

    cases fall under the category of "petty offences". The police charge

    against the petitioner in this case is for offences punishable under

    Secs. 279 I.P.C. and            179 of the M V Act . Sec. 179 of the M.V. Act

    has been incorporated for the alleged             contravention of Sec. 132 of

    the M.V. Act.             Sec. 132 enjoins the driver of a motor vehicle to stop

    the vehicle when required to do so by a police officer not below the

    rank of a Sub Inspector in uniform. The offence under Sec. 179 of the

    M.V. Act is punishable with a fine of Rs. 500/-. The offence under

    Sec. 279 I.P.C. is punishable with imprisonment up to six months or

    with fine which may extend to                Rs. 1,000/- or both.      Sec. 206

    Cr.P.C. reads as follows:-

                            "206.    Special     summons in case        of petty
                            offence:- (1) If, in the opinion of a Magistrate
                            taking cognizance of a petty offence, the case may be
                            summarily disposed of under Sec. 260 [or section

    Crl.M.C. Nos. 2125 of 2010               -:10:-


                            261], the Magistrate shall, except where he is, for
                            reasons to be recorded in writing of a contrary
                            opinion, issue   summons to the accused requiring
                            him either to appear in person or by pleader before
                            the Magistrate on a specified date, or if he desires to
                            plead guilty to the charge without appearing before
                            the Magistrate, to transmit before the specified date,
                            by post or by messenger to the Magistrate, the said
                            plea in writing and the amount of fine specified in
                            the summons or if he desires to appear by pleader
                            and to plead guilty to the charge through such
                            pleader, to authorise, in writing, the pleader to
                            plead guilty to the charge on his behalf and to pay
                            the fine through such pleader:
                                  Provided that the amount of the fine specified
                            in such summons shall not exceed one thousand
                            rupees.
                                  2.    For the purposes of this section, "petty
                            offence" means any offence     punishable only with
                            fine not exceeding one thousand rupees, but does
                            not include any offence so punishable under the
                            Motor Vehicles Act, 1939 (4 of 1939), or under any
                            other law which provides        for convicting the
                            accused persons in his absence on a plea of
                            guilty".

                                  3.    The    State  Government       may,    by
                            notification, specially empower any Magistrate to
                            exercise   the powers conferred by sub-section (1)
                            in relation to any offence which is compoundable
                            under section 320 or any offence punishable with
                            imprisonment for a term not exceeding           three
                            months, or with fine, or with both where the
                            Magistrate is of opinion that, having regard to the
                            facts and circumstances of the case, the imposition
                            of fine only would meet the ends of justice].

    Crl.M.C. Nos. 2125 of 2010                           -:11:-


    The special summons to be issued under Sec. 206 (1) Cr.P.C. has

    been prescribed in Form No. 30 of the 2nd Schedule to the Cr.P.C. The

    said Form is given below:-


                                                FORM NO. 30

             SPECIAL SUMMONS TO A PERSON ACCUSED OF PETTY OFFENCE


                                                 (See section 206)


    To........................(Name of the accused)

    of............................(address)


             WHEREAS                 your attendance is necessary to answer a charge of a petty
    offence ...................(state shortly the offence charged), you are hereby required to appear
    in person (or by pleader) before....................(Magistrate) of .....................on the ...........
    day of............20......, or if you desire to plead guilty to the charge without appearing
    before the Magistrate, to transmit before the aforesaid date the plea of guilty in writing
    and the sum of .............rupees as fine, or if you desire to appear by pleader and to plead
    guilty through such pleader, to authorise such pleader in writing to make such a plea of
    guilty on your behalf and to pay the fine through such pleader. Herein fail or not.

             Dated, this ....................day of ...................20.............

      (Seal of the Court)                                                                    (Signature)

             (Note - The amount of fine specified in this summons shall not exceed one
    hundred rupees.)


    Sub Sec. (1) of Sec. 260 enumerates the class of cases which could

    be tried summarily by the Magistrates. The said sub - Section

    reads as follows:-

          "260. Power to try summarily:- (1) Notwithstanding anything contained in
          this Code -
                       a) any Chief Judicial Magistrate;

    Crl.M.C. Nos. 2125 of 2010                    -:12:-


                    b) any Metropolitan Magistrate;
                    c) any Magistrate of the first class specially empowered in this behalf
                        by the High Court
                    may, if he thinks fit, try in a summary way all or any of the following
                    offences:-

                        i)    offences not punishable with death, imprisonment for life or
                              imprisonment for a term exceeding two years;

                        ii) theft, under section 379, section 380 or section 381 of the Indian
                              Penal Code (45 of 1890), where the value of the property stolen
                              does not exceed two thousand rupees;

                        iii) receiving or retaining stolen property, under section 411 of the
                              Indian Penal Code (45 of 1860), where the value of the property
                              does not exceed two thousand rupees;

                        iv) assisting in the concealment or disposal of stolen property, under
                              section 414 of the Indian Penal Code (45 of 1860) where the value
                              of such property does not exceed two thousand rupees;

                        v) offences under sections 454 and 456 of the Indian Penal Code (45 of
                              1860)

                        vi) insult with intent to provoked a breach of the peace, under section
                              504 and criminal intimidation punishable with imprisonment for a
                              term which may extend to two years, or with fine, or with both
                              under section 506 of the Indian Penal Code (45 of 1860)

                        vii) abetment of any of the foregoing offences;

                        viii) an attempt to commit any of the foregoing offences, when such
                              attempt is an offence;

                        ix) any offence constituted by an act in respect of which a complaint
                              may be made under Section 20 of the Cattle Trespass Act , 1871 (1
                              of 1871)."


    The position which emerges on a combined reading of Sections

    206 and 260 Cr.P.C. is that while the Magistrates can resort to the

    summary procedure for trial of those offence which are

    enumerated under Section 260 (1) Cr.P.C. , a special summons in

    Crl.M.C. Nos. 2125 of 2010              -:13:-


    Form 30 can be issued               under Sec. 206 (1) Cr.P.C. giving the

    option to the accused to plead guilty in absentia and to transmit

    through post or through messenger the fine amount shown in the

    summons only in the case of "petty offences" as defined under

    Section 206 (2) Cr.P.C. No doubt, the State Government can

    under Sec. 206 (3) Cr.P.C. specially empower any Magistrate to

    follow the "special summons procedure"                under Sec. 206 (1)

    Cr.P.C. in relation to any offence which is compoundable under

    Sec. 320 Cr.P.C. or which is punishable with imprisonment upto

    three months. No notification by the State Government under

    Sec. 206 (3) Cr.P.C. appears to have been issued. No notification

    was brought to my notice as well. Thus, "petty offence" within

    the meaning of Section 206 Cr.P.C. is an offence which is

    punishable only with fine not exceeding Rs. 1,000/- but does not

    include any offence              so punishable under the Motor Vehicles

    Act.        If so,        Section 279 I.P.C. which is a cognizable offence

    and which is              not an offence punishable only with fine    and

    Section 179 of the M.V.Act are not "petty offences". Even if

    Sec. 179 of the M.V.Act were to be treated as a petty offence,

    when the case involved Sec. 279 I.P.C. as well, then drawing the

    analogy from Sec. 155 (4) Cr.P.C. the present case could not be

    treated as             "a petty case" involving a "petty offence" only .

    Hence, even assuming that               the Circular relied on by the Sub

    Crl.M.C. Nos. 2125 of 2010           -:14:-


     Inspector could be treated as valid, the same cannot apply to

     the facts of this case.       By and large, all petty offences are non-

     cognizable offences and they ordinarily do not originate with the

     registration of a case under Sec. 157 Cr.P.C. and, therefore, cannot

     end in a police report.

             10. The result of the foregoing discussion is that Annexure

    A1 notice issued by the Sub Inspector is without any authority

    and is liable to be ignored by the petitioner. It is pertinent to note

    that it was even without filing the charge sheet before the Court

    of the ACJM that the Sub Inspector had summoned the petitioner

    to the Court of the ACJM. Even the Magistrate could not have

    issued summons to the accused at the pre-cognizance stage. By

    issuing Annexure - A1 notice the Sub Inspector was usurping the

    powers of the Court.           It is rather strange that    the learned

    Magistrate even after taking note of the illegal notice issued by

    the Sub Inspector           (Vide   the letter  dated 24-6-2010 of the

    Magistrate) has not chosen         to     make any comments about the

    invalidity of the said notice.

               Is there any unholy practice of allowing the Police to
               serve notices to the offenders on the spot asking them to
               appear before the Magistrate concerned on a specified
               day to suit the convenience of the Magistrate in the so
               called "petty offences" ?

    Crl.M.C. Nos. 2125 of 2010              -:15:-


               Was the Magistrate surrendering his powers           to the
               police         so as to enable the police to arrogate    to
               themselves the authority of the Magistrate ?

               Was the Sub Inspector, in order to avoid the wrath of

               his superiors, achieving the unwritten target of

               registering        the minimum number of cases without

               caring for the prey he chanced to stumble upon ?


    If the Sub Inspector was punctiliously obeying the orders of

    his superiors, then it is high time that the Police Commissioners/

    Superintendents of Police              discontinued  such unwholesome

    practice           of compelling their subordinates to book a fixed

    minimum number of cases regardless of the hardship, annoyance

    or discomfort to the users of motor vehicles and the travelling

    public. The penal provisions in the Indian Penal Code, Motor

    Vehicles Act and allied legislations are not intended to persecute

    persons for every innocent violation but to bring to justice

    daring and/or incorrigible offenders. It is an irony that while

    hard core offenders in respect of motor vehicles get away scot

    free even without detection, those who fall in the police dragnet

    are small flies like the petitioner.

                11.            Since the ACJM has already taken cognizance

    of the offences , I leave it to the learned Magistrate to deal with

    the matter without forgetting that the petitioner who was going

    Crl.M.C. Nos. 2125 of 2010                  -:16:-


    home after closing his shop would not have anticipated such a

    bitter experience in his life and that he has suffered enough.

              12. This Crl.M.C. is disposed of as above.

              It is desirable that the State Government issue a notification

    under Section 206 (3) Cr.P.C. empowering all Judicial Magistrates

    of the First Class to summarily dispose of the categories of cases

    specified therein through "the Special Summons Procedure" under

    Sec. 206 (1) Cr.P.C. so that persons accused of such offences are

    not put to undue hardship.                     Such     categories of cases for

    notification may include offences which are compoundable under

    Section 200 of the Motor Vehicles Act, 1988 as well.

             Copies of this judgment shall be forwarded to the Transport

    Secretary as well as Home Secretary for appropriate measures, if

    they deem fit to do so.

             Dated this the 20th day of July, 2010.




                                                Sd/-V. RAMKUMAR, JUDGE.

    ani/
                                           /true copy/


                                                  P.S. to Judge




     
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