Anil Kumar vs State of Kerala

C.T. Ravi Kumar, J.—The petitioner is the accused in S.T. No. 929 of 2007 on the file of the Court of Judicial First Class Magistrate-II, Neyyattinkara arising from Crime No. 97 of 2007 of Vizhinjam Police Station. The accusation against the petitioner is one of commission of an offence u/s 48(c) of the Kerala Police Act, 1960. This petition is filed seeking quashment of Annexure-II final report laid in the aforesaid crime and all further proceedings pursuant thereto in S.T. No. 929 of 2007 on the file of the Court of Judicial First Class Magistrate-II, Neyyattinkara. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor.

The learned counsel appearing for the petitioner drew my attention to Section 48(c) of the Kerala Police Act, 1960. It is submitted by the learned counsel that even if the entire allegations against the petitioner in Annexure-1 FIR and Annexure-2 final report are taken, in their entirety, as correct they would not attract the offence u/s 48(c) of the Kerala Police Act, 1960. To buttress the said contention the learned counsel relied on a decision of this Court in Ramakrishnan v. State of Kerala (1991 (1) KLT 870) wherein this Court held that besides physical presence in the premises, the prosecution must also show that the person had taken precautions for concealment and also made preparations for committing an offence. In the light of the contentions it is worthwhile to scan the allegations made against the petitioner. The gist of the allegations against the petitioner is that on 26.2.2007 at about 2.50 a.m. while the police party were on patrol duty, they saw the accused running away through a by-lane near Kamala Textiles at Vizhinjam junction. It is further alleged that on being questioned he could not give any satisfactory answer and therefore, it is presumed that he was present there at that time with an intention to commit theft. In the light of the contentions and the allegations it is apposite to refer to Section 48 of the Kerala Police Act, 1960 which reads as follows:-

Penalty for being found armed between sunset and sunrise intending to commit an offence, etc.- whoever is found, between sunset and sunrise-

(a) armed with any dangerous instrument with intent to commit an offence,

(b) having his face covered or otherwise disguised with intent to commit an offence,

(c) in any dwelling house or other building or on board any vessel or boat, without being able satisfactorily to account for his presence there,

(d) lying or loitering in any bazaar, street, yard or other place, being a reputed thief and without being able to give a satisfactory account of himself, or,

(e) having in his possession without lawful excuse any implement of house breaking.

may be arrested by any police officer without a warrant and shall be liable on conviction to imprisonment for any term not exceeding three months.

A careful consideration of the allegations made against the petitioner in Annexures 1 and 2 and in the light of the provisions in Section 48(c) of the Kerala Police Act, 1960, would undoubtedly reveal that none of the ingredients to attract the offence u/s 48(c) is alleged against the petitioner. When that be so, the petitioner is perfectly justified in seeking the aforesaid prayers. In the light of the position of law as revealed from Ramakrishnan''s case (supra) and the accusation made against the petitioner as per Annexure-2 and Section 48(c) of the Kerala Police Act, 1960 it is very much evident that necessary ingredients to attract the alleged offence are not made against the petitioner.

Therefore, allowing continuation of such proceedings will not be in the interest of justice. In the aforesaid circumstances, I am inclined to allow this petition.

Resultantly, this Crl.M.C. is allowed. Annexure-1 FIR, Annexure-2 final report laid in Crime No. 97 of 2007 of Vizhinjam Police Station and all further proceedings pursuant thereto against the petitioner in S.T. No. 929 of 2007 pending on the files of the Court of Judicial First Class Magistrate-II, Neyyattinkara are hereby quashed.