IMPORTANT POINT
Prosecution based on unreliable evidence and improper investigation methods cannot sustain criminal charges.

ORDER :

1. Petitioner challenges the criminal proceedings initiated against him.

2. Petitioner is the accused in S.T. No. 2598 of 2023 on the files of the Judicial First Class Magistrate's Court, Kakkanad, arising out of Crime No. 1539 of 2023 of Thrikkakara Police Station, Ernakulam.

3. The prosecution alleges that on 25.08.2023, the accused was found driving a motorcycle bearing Registration No. KL-40-R-3267 under the influence of alcohol in a rash and negligent manner and likely to endanger human life through the Kakkanadu-Pallikkara road, Ernakulam and thereby committed the offences under Section 279 of the Indian Penal Code, 1860 and Section 185 of the Motor Vehicles Act, 1988 (for short ‘M.V. Act’).

4. I have heard Sri. C.S. Manu, the learned counsel for the petitioner as well as Sri. Noushad K.A. the learned Public Prosecutor.

5. For the offence under Section 185 of the M.V. Act to be attracted, the basic requirement is that the accused must have in his blood, alcohol exceeding 30 mg. per 100 ml of blood detected in a test by a breath analyser or in any other test including a laboratory test. A perusal of the final report indicates that in the alcometer test conducted on the petitioner, all that was detected was 23 mg. per 100 ml. It is evident that the breath analyser test conducted on the petitioner did not satisfy the ingredients of Section 185 of the M.V. Act. Hence, he cannot be prosecuted for the said offence.

6. The prosecution has included Section 279 I.P.C. as another offence committed by the petitioner. The final report and the statement of the petitioner under section 161 Cr.P.C. which are produced as Annexure A3 and Annexure A4 respectively, indicate that there has not been any application of mind by the Investigating Officer while preparing the final report. Curiously a printed format is used to take down the statement under Section 161 Cr.P.C. It needs no elaborate discussion that the statement under Section 161 Cr.P.C. cannot be in a printed format.

7. The purpose of taking down the statement of a witness in the form of writing is to reproduce, as much as possible, in the same words as the witness had spoken to and which may throw light on the alleged offence. If a printed format is used to reduce the statement given by a witness into writing, the same would not serve the purpose contemplated by law. The circumstances in each case will be different and the manner and the mode in which the witness narrates the incident would also be different. For the purpose of the trial of a case, it is essential that the circumstances as narrated by the witness during his examination by the Investigating Officer are taken down in almost the same manner in which the witness narrated it. A printed format under Section 161 of the Cr.P.C. is not at all contemplated under law.

8. A statement recorded under Section 161 Cr.P.C. by filling in the blanks in a printed format is an artificial document and cannot be relied upon in a criminal prosecution. Such a document cannot be the basis for a criminal prosecution. The existence of such a material indicates a slipshod and unreliable investigation. The prosecution based on such artificially created documents is against the principle of the rule of law. Therefore, I am satisfied that the prosecution of the petitioner is wholly without authority and is liable to be quashed.

9. In the decision in Premchand R. vs. State of Kerala, 2015 (1) KLT 32, a learned Single Judge of this Court had considered a similar case where a printed form was used to file the final report and even to take down the statement of the material witness under Section 161 of Cr.P.C. The learned Single Judge observed that since a printed form was used for taking down the statement under Section 161 Cr.P.C. the prosecution itself is artificial.

10. Accordingly, the proceedings against the petitioner in S.T. No. 2598 of 2023 on the files of the Judicial First Class Magistrate's Court, Kakkanad, arising out of Crime No. 1539 o