Rakesh Joy vs State Of Kerala
2022 Latest Caselaw 8168 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
        FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                          CRL.MC NO. 3 OF 2021
 AGAINST THE ORDER/JUDGMENT IN CC 153/2020 OF JUDICIAL MAGISTRATE
                      OF FIRST CLASS -I,NEDUMANGAD
PETITIONER/ACCUSED:

           RAKESH JOY,
           AGED 45 YEARS,
           S/O.NJANAN, JOY BHAVAN, NEAR PETROL PUMP,
           KUTTICHAL, MANNOORKARA VILLAGE,
           NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT.

           BY ADVS.
           G.SUDHEER
           SRI.R.HARIKRISHNAN (H-308)


RESPONDENTS/STATE & DEFACTO COMPLAINANT:

    1      STATE OF KERALA,
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM KOCHI 682 031

    2      SMT.MANJUSHA,
           D/O.SHANTHA, AGED 44 YEARS, MUKKALI THERIYAM VILAKOM,
           KOTTAKKAKAM, ARYANAD, NEDUMANGADU TALUK,
           THIRUVANANTHAPURAM DISTRICT, PIN 695 125


OTHER PRESENT:

           ADV NIMA JACOB- PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 3 OF 2021     -2-




                        ORDER

The petitioner is the accused in C.C.No.153/2020

pending before the Judicial First Class Magistrate

Court-I, Nedumangadu. The aforesaid case arises

from Crime No.1196/2019 of Aryanadu Police

Station, which was registered for the offences

punishable under Sections 279, 337, 304(A) of The

Indian Penal Code and also under Section 185 of the

Motor Vehicle Act, 1988 (hereinafter referred to as

'the MV Act', for short). The prosecution case is that,

on 25.12.2019 at 3.00 p.m. accused had driven a car

bearing Registration No.KL-21-R-2710, under the

influence of alcohol, hit a pedestrian and later, as a

result of the injuries, the said person died. Annexure

A is the FIR, and Annexure B is the Final Report

submitted by the Police. This Criminal M.C. is filed

for quashing all further proceedings pursuant to

Annexure B against the petitioner.

2. Heard Sri.G.Sudheer, learned counsel

appearing for the petitioner and Smt. Nima Jacob,

learned Public Prosecutor for the State.

3. The case of the petitioner is that none of the

offences alleged against the petitioner are attracted

from the materials produced by the prosecution

along with Annexure B Final Report.

4. On the other hand, learned Public

Prosecutor opposes the same.

5. I have gone through the materials produced

and also considered the rival submissions.

6. As regards the offences under Sections 279,

337 and 304(A) of the Indian Penal Code, I am of the

view that the contentions put forward by the learned

counsel for the petitioner are purely questions of

facts. Therefore, I do not find any reason to interfere

in the Final Report regarding the offences above.

7. Regarding the prosecution for the offence

under Section 185 of the MV Act, the specific case of

the learned counsel for the petitioner is that the

aforesaid offence is charged without conducting a

proper blood test as mandated under Section 185 of

the MV Act.

8. On perusal of the records, I find that there

is some force in the contention of the learned counsel

for the petitioner. As per Section 185 of the M.V Act,

a person can be punished if it is found that, at the

time when he was found driving the vehicle, he has in

his blood, alcohol exceeding 30mg/100ml of blood. It

is specifically contemplated that the said percentage

of alcohol should be detected in a test by a breath

analyser or any other test, including a laboratory

test. Thus it is evident that, to prosecute a person

for the offence under Section 185 of MV Act, a blood

test by way of a breath analyser or any other test,

including a laboratory test is mandatory. In addition

to that, by conducting such a test, the prosecution

has to establish that the percentage of alcohol at the

relevant time exceeds 30mg/100ml. In this case, the

only material relied on by the prosecution is

Annexure C Certificate of Drunkenness. The

aforesaid certificate does not contain any indication

as to the conduct of any blood test as specified in

Section 185 of the MV Act. It is only stated that

there was the smell of alcohol. Since the percentage

of alcohol is not detected in the manner as

contemplated under Section 185 of the MV Act, the

prosecution for the aforesaid offence is not legally

sustainable.

In such circumstances, even though I am of the

view that the petitioner is liable to face trial about

the offences under Sections 279, 337 and 304(A) of

the Indian Penal Code, I do not find any sustainable

grounds for continuing the prosecution under Section

185 of the Motor Vehicles Act. Accordingly, this

Criminal M.C. is disposed of quashing Annexure B

Final Report to the extent it contains the offence

under Section 185 of the MV Act. The prosecution

can be continued for the other offences.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE vv

APPENDIX OF CRL.MC 3/2021

PETITIONER ANNEXURES

ANNEXURE A A TRUE COPY OF THE FIR AND FIS IN CRIME NO.1196/2019 OF ARYANADU POLICE STATION, THIRUVANANTHAPURAM DISTRICT DATED 25.12.2019

ANNEXURE B ATTESTED COPY OF THE FINAL REPORT CRIME NO.1196/2019 OF ARYANADU POLICE STATION, THIRUVANANTHAPURAM DISTRICT DATED 25.12.2019 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, NEDUMANGADU

ANNEXURE C TRUE COPY OF THE CERTIFICATE OF DRUNKENNESS OF THE PETITIONER ISSUED BY MEDICAL OFFICER IN -CHARGE, CHC ARYANADU

ANNEXURE D TRUE COPY OF ORDER DATED 13.9.2018 IN CRL.M.C. NO.5418/2018 OF THIS HONOURABLE COURT