Porinchu. T.K. vs The State of Kerala

Thomas P. Joseph, J.—Petitioner is accused in Crime No. 880 of 2010 of Cherppu Police Station and S.T. No. 6621 of 2010 of the Court of learned Judicial First Class Magistrate-I, Thrissur praying that Annexure- IV, final report and further proceeding in S.T. No. 6621 of 2010 may be quashed for the reasons stated in this criminal Miscellaneous case. Learned Counsel submitted that offences under Sections 184 and 185 of the Motor Vehicles Act (for short, "the Act") charged against Petitioner are non-cognizable in character and hence the police could not have registered a case u/s 154 of the Code of Criminal Procedure (for short, "the Code") as if the offences are cognizable in character, conduct investigation and submit a final report u/s 173(2) of the Code. Learned counsel invited my attention to the decision of this Court dated March 30, 2011 in Crl. M.C. No. 702 of 2011. It is also contended that blood test as required under Sections 185 and 203 of the Act has not been conducted and hence offence u/s 185 of the Act cannot stand.

It is seen from Annexure-1, FIR that police has registered a case for offences under Sections 184 or 185 of the Act. The suo moto report of detecting officer (officer in charge of the Police Station) is that on 03.11.2010 at about 9.30p.m while on patrol duty he found Petitioner riding a motor bike in an "irregular manner", intercepted Petitioner and questioned him. On questioning the Sub Inspector was convinced that Petitioner has consumed liquor. Thereon, he was arrested and the vehicle was seized. It is also stated that he was subjected to medical examination. Thereafter a case was registered for offences under Sections 184 and 185 of the Act. This Court in the decision referred supra has held that notwithstanding the limited power for arrest given to the officer in uniform in the circumstances stated in Sections 202 and 203 of the Act when an offence under Sections 184 and or 185 of the Act is committed, the said offences continued to be non-cognizable in character and on completion of medical examination or other purpose for which arrest is permitted, the detecting officer or the officer in charge of the police station to whom the incident is reported has to follow the procedure prescribed for investigation of a non-cognizable offence. This Court also found that in such circumstance the police could not straight away register a case as if the offences are cognizable in character, without permission of the Magistrate having jurisdiction to try the case as provided u/s 155(2) of the Code. In the present case, it is seen that the police officer while registering the case was satisfied that only offences under Sections 184 and 185 of the Act (non-cognizable in character) were committed in which case he could have registered the case, investigated and submitted a final report only on getting permission from the Magistrate having jurisdiction to try the case as provided u/s 155(2) of the Code. Since that provision has not been complied, registration of the case, investigation and submission of final report are not legal. It follows that cognizance taken by the Magistrate on the said final report is also illegal.

Though learned Counsel has a contention that offence under Sections 184 or 185 of the Act is made out, on hearing learned Counsel and the learned Public Prosecutor. I am not inclined to accept that contention at this stage.

In the light of what I have stated above, cognizance taken by the learned Magistrate is liable to be quashed. Final report and connected records are to be returned to the police officer concerned who has either to follow the procedure prescribed u/s 155(2) of the Code, obtain permission of the Magistrate concerned, register a case, investigate and submit final report or file a complaint as provided u/s 190 read with 200 of the Code. If such a complaint is filed, the Magistrate could order and enquiry by the police or such other person as he deems fit as provided u/s 202 of the Code. Resultantly this criminal Miscellaneous case is allowed. Cognizance taken by learned Judicial First Class Magistrate-I, Thrissur against Petitioner in S.T. No. 6621 of 2010 is set aside. Learned Magistrate is directed to return the final report and connected records to the officer concerned who shall follow the procedure stated above subject to the law governing limitation.