Kerala High CourtSadiq Ameen vs State Of Kerala on 25 January, 2011IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4237 of 2010()


1. SADIQ AMEEN, AGED 19,
                      ...  Petitioner
2. FUAD HARIS, AGED 20, S/O.HARIS N.V.,

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. THE SUB INSPECTOR OF POLICE,

3. DR.VIJITH VIJAY, S/O.VIJAYAN PILLA

                For Petitioner  :SRI.D.KISHORE

                For Respondent  :SRI.K.B.PRADEEP


 Dated :25/01/2011

 O R D E R
                            THOMAS P. JOSEPH, J.
                          --------------------------------------
                            Crl.M.C. No.4237 of 2010
                          --------------------------------------
                   Dated this the 25th day of January, 2011.

                                       ORDERPetitioners are accused in Crime No.313 of 2010 of Medical College

Police station, Thiruvananthapuram and C.C.No.463 of 2010 of the court of

learned Additional Chief Judicial Magistrate,Thiruvananthapuram for offences

punishable under Sections 447, 341, 294(b), 323 and 506(i) read withSection 34of the Indian Penal Code (for short, "theIPC") andSection 4of the Kerala

Prohibition of Ragging Act, 1998 (for short, "the Act"). Case is that on 05.04.2010

at about 7.30 p.m. Petitioners allegedly trespassed into the room of respondent

No.3/the defacto complainant, wrongfully restrained, used obscene words,

voluntarily caused hurt, criminally intimidated him with death and committed

offence underSection 4of the Act. On the information given by respondent No.3,

respondent No.2, Sub Inspector registered a case for offences under theIPCreferred to above. While the investigation was in progress it would appear that

the Principal of the Medical College Hospital, Thiruvananthapuram forwarded a

report of enquiry to the Sub Inspector which allegedly related to the offence

punishable underSection 4of the Act. Thereon the Sub Inspector reported to

the learned Additional Chief Judicial Magistrate that in the light of report

forwarded to him by the Principal of the Medical College Hospital offence underSection 4of the Act is also incorporated in Annexure-I, FIR and the matter is

being investigated. After investigation respondent No.3 filed final report againstCrl.MC No.4237/20102all the accused before learned Additional Chief Judicial Magistrate. Learned

Additional Chief Judicial Magistrate has taken cognizance and filed a case

against petitioners as C.C.No. 463 of 2010. Prayer in this proceeding is to quash

the proceedings against petitioners on two grounds, viz., that the investigation

conducted and cognizance taken in respect of offence underSection 4of the Act

is illegal and secondly, that the matter has been compounded between

petitioners and respondent No.3/defacto complainant as revealed from

Annexure-III affidavit of the latter.2.     I have heard learned counsel for petitioners, respondent No.3 and

the learned Public Prosecutor who appeared on behalf of respondent Nos.1 and2. Learned Public Prosecutor after getting instruction from the officer concerned

has submitted that there is a settlement of the dispute between petitioners and

respondent No.3 outside court.3.     The first limb of argument is as to the legality of investigation

conducted, final report and cognizance taken for offence underSection 4of the

Act. That argument is based onSection 6of the Act,Section 155of the Code of

Criminal Procedure (for short, "the Code") and the decision of this Court inAhammed Manaf v. Sub Inspector of Police(2010 (4) KLT 837). It

is not disputed before me that offence underSection 4of the Act is non-

cognizable in which case the procedure under Section 155 of the Code was toCrl.MC No.4237/20103be followed by the Investigating Officer.         Under the said provision when

information is given to the Police Officer about commission of non-cognizable

offence, he shall refer the informant to the Magistrate and on getting order from

the Magistrate having power to try such offence shall investigate into such non-

cognizable offence. In the present case it is not shown, and going by Annexure-

II, report it is seen that it was not a case where, on getting report of enquiry from

the Head of Institution respondent No.2 had referred the informant (regarding

commission of offence underSection 4of the Act) to the Magistrate concerned

and on getting the order from the Magistrate he investigated the case.4.       Going bySection 6of the Act, the Head of the        Institution on

receiving a complaint from any of the persons referred to therein is to conduct an

enquiry into the matter and if prima facie it is found true, has to "forward the

complaint to the Police Station having jurisdiction over the area in which the

educational institution is situate, for further action". In otherwords it is not as if

the Head of the Institution is required to make a complaint of his own to the

Station House Officer concerned, instead he is to forward the complaint received

from any of the persons referred to inSection 6 (1)of the Act after conducting

an enquiry to find prima facie the truth of the allegation. Going by Annexure-II,

report it is seen that it is not on a complaint preferred by the Head of the

Institution the investigation was conducted. The investigation into the offence

underSection 4of the Act is in violation ofSection 6of the Act and Section 155Crl.MC No.4237/20104(2) of the Code.In the circumstances, respondent No.2 was not legally entitled

to investigate into the offence underSection 4of the Act in which case the final

report submitted in that regard and cognizance taken thereon can only said to be

illegal as held inAhammed Manaf v. Sub Inspector of Police.5.    Then the next question is whether offences under theIPCalleged

against petitioners are to be compounded. It is seen that the alleged incident

occurred between respondent No.3, himself, an Ayurveda Physician aged about

26 years and an MBBS student and petitioners who are B.Pham. students aged

about 21 years. In Annexure-III, affidavit respondent No.3/defacto complainant

has stated the circumstances under which he happened to give first information

to respondent No.2 based on which the case was registered. He also stated

that on a proper recollection of facts he learnt that petitioners are not involved in

the case. He states that he has condoned the acts of petitioners in the matter.Having regard to the nature of offences attributed to petitioners under theIPC, subsequent settlement of the dispute between the parties outside court,

considering the fact that petitioners and respondent No.3 are students of the

same institution though attending different courses and also taking into account

the fact that success of prosecution in a case of this nature largely depended on

the evidence respondent No.3 is to give and hence the bleak possibility of

prosecution ending in a successful culmination in view of the stand ofCrl.MC No.4237/20105respondent No.3, I am inclined to think that to maintain the harmonious

relationship  petitioners and respondent No.3 have now reached, this Court

should interfere under Section 482 of the Code.Resultantly this petition is allowed for the reasons stated above. The final

report in Crime No.313 of 2010 of Medical College Police Station,

Thiruvananthapuram, cognizance taken thereon and all further proceedings in

C.C.No.463 of 2010 of the court of learned Additional Chief Judicial Magistrate,

Thiruvananthapuram concerning petitioners are quashed.THOMAS P.JOSEPH,
                                                         Judge.cks