Baburajan vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner to quash the proceedings in CC.2174/2011 pending before the Judicial First Class Magistrate Court-Chalakudy under section 482 of Code of Criminal Procedure.

It is alleged in the petition that petitioner has been arrayed as sixth accused in the case. Originally, the petitioner was not implicated in the case and only at the time the final report was filed, he has been arrayed as an accused. The allegation was that he along with others have violated the provisions under Clause 5A of the Kerala Rationing Order and thereby, he committed the offence punishable under section 3 and 7 of the Essential Commodities Act. According to the petitioner, the articles were transported from the Food Corporation of India godown along with the truck chit and while it was going to the petitioner''s shop, the officials have intercepted the same, and registered the crime. So according to him, no offence has been committed by him. He also filed W.P. (C).No.16523/2011 and by Annexure-A8 order, this court prevented the police from producing the seized food grains either before the District Collector or before the concerned court and ultimately, the petition was disposed of by Annexure-A10 judgment, directing the petitioner to approach the District Collector or the learned Magistrate for interim custody of the vehicle and articles. The petitioner also moved Annexure-A11 application before the Magistrate seeking interim custody of these articles seized and that is also pending. According to the petitioner, the prosecution against him will not lie and proceedings with the case will only amount to abuse of process of court. So the petitioner has no other remedy except to approach this court seeking the following relief:-

"Call for the entire records which led to Annexure-A11 and set aside the same to the extent it relates to the petitioner herein by deleting his name from the array of accused in CC.2174/2011 on the file of the Judicial First Class Magistrate Court, Chalakudy".

On the basis of the allegations in the petition, this court has called for a report from the concerned Magistrate court regarding the present stage of the case and the learned Magistrate has sent a report which reads as follows:-

The petitioner i.e., the sixth accused who is indicted for offence punishable under Section 5(a) of Rationing Order and 3 and 7 of Essential Commodities Act 1965. The prosecution case is that the petitioner in this case along with other accused illicitly transported ration wheat intended for public distribution for unauthorised sale. On receiving a secret information the police official had seized two lorries and 420 sacks of ration wheat and on interrogation the accused revealed that the ration wheat was loaded from FCI go down for transporting the same to wholesale dealers at Irinjalakuda and Kodungalloor and they were attempting to transport the same to Roller Flower Mill at Pallikal in Kalady. In this case all accused entered appearance and were released on bail. From the side of prosecution PW1 to 7 were examined and Ext.P1 and P2 seizure mahazars were marked. On 18.6.2014 a direction was given to Manager FCI Chalakudy to produce the documents taken on Kychit. The case was posted for production of said documents to 12.8.2014. Altogether 32 witnesses were cited by the prosecution to prove its case. Now the case stands posted to 12.8.2014.

The counsel for the petitioner submitted that the offence against him will not lie.

The learned Public Prosecutor opposed the application.

On going through the report of the Judicial first Class Magistrate, Chalakudy, it is seen that the trial of the case has already been started and PWs 1 to 7 were examined and Exts.P1 and P2 were already marked and it was posted to 12.08.2014, for further evidence. Considering the fact that trial of the case already been started in the court below, this court feels that it is a belated stage that this application has been filed and it is not a fit case to invoke the power under section 482 of Code of Criminal procedure at this stage to consider the case of the petitioner alone as there are other accused also involved in the case and they will have to face the trial after completion of the examination of the witnesses. So considering these facts this court felt that the petition can be disposed of leaving open the right of the petitioner to take all the contentions raised by him, in this proceedings before the Magistrate court and also giving direction to the Magistrate to expedite the trial of the case. So the petition is disposed of as follows:-

Judicial First Class Magistrate Court, Chalakudy is directed to take all earnest attempt to dispose of the case as expeditiously as possible, at any rate, within four months from the date of receipt of this order. The petitioner is at liberty to raise all the contentions raised by him before this court and the learned Magistrate is directed to consider those contentions also and pass appropriate orders in accordance with law.

If the petitioner applies for personal exemption affirming that his identity will not be disputed, then the learned Magistrate shall consider and dispose of that application also on the date of filing of the application, fixing the date on which the presence of the petitioner is required for smooth progress of the trial of the case on such condition as that court may deem fit to impose.

With the above observations and directions the petition is disposed of. Office is directed to communicate this order to the concerned court immediately.