A. Mohammed Ashraf, Salahudheen K.B., P.D. Jiju v. State of Kerala and Kanu K.G.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938** **Crl.MC.No. 978 of 2017 () --------------------------** **CRIME NO. 1922/2016 OF KALAMASSERY POLICE STATION , ERNAKULAM** **PETITIONER(S):** **-------------** **1. A. MOHAMMED ASHRAF, AGED 49 YEARS, S/O.A.MARAKKAR, AMIYAN HOUSE, AL-AMEEN NAGAR, NAD P.O., ALUVA, SENIOR DRAUGHTSMAN, NAVAL ARMAMENT DEPOT, ALUVA.** **2. SALAHUDHEEN K.B., AGED 40 YEARS, S/O.BEEERAN KUNJU, KOLATHAYIKKOTTIL HOUSE, EDATHALA, ALUVA, CIVILIAN MOTOR DRIVER, CMD II, NAD, ALUVA.** **3. P.D.JIJU, AGED 40 YEARS, S/O.DEVASSY, POLLAYIL HOUSE, ALANGADU P.O., ALUVA, ERNAKULAM, SKILLED BLACKSMITH, NAD, ALUVA.** **BY ADVS.SRI.S.RADHAKRISHNAN** **SRI.S.RAJ MOHAN SMT.R.ANJALI SMT.ASWATHI SUKUMARAN SRI.ADITYA THEJUS KRISHNAN** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. KANU K.G.,** **S/O.GOPALAKRISHNAN, RESIDING AT QUARTER NO.19/1, AYUDHAVIHAR, NAD, KALAMASSERY, ERNAKULAM.** **R2 BY ADV. SRI.K.T.SAJU** **R1 BY PUBLIC PROSECUTOR SMT. PRIYA SHANAVAS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 978 of 2017 ()** **--------------------------** ## **APPENDIX** **PETITIONERS' ANNEXURES:** **ANNEXURE 1- THE CERTIFIED COPY OF THE FIR NO.1922/2016 OF KALAMASSERY POLICE STATION DATED 21/12/2016.** **ANNEXURE 2- A TRUE COPY OF THE COMPLAINT FILED BEFORE THE EDATHALA POLICE SUB INSPECTOR ON 21/12/2016.** **ANNEXURE 3- A TRUE COPY OF THE STATEMENT GIVEN BY MR.VIJAYAN BEFORE THE EDATHALA POLICE.** **ANNEXURE 4- A TRUE COPY OF FIR NO.1923/2016 OF THE KALAMASSERY POLICE STATION DATED 21/12/2016.** **RESPONDENTS' ANNEXURES:** **NIL** **TRUE COPY** **P.A. TO JUDGE.** **kp** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - ## Crl.M.C. No. 978 of 2017 - - - - - - - - - - - - - - - - Dated 16[th] February, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioners herein, who are are arrayed as the accused Nos. 1 to 3 in Crime No.1922 of 2016 of Kalamassery Police Station has preferred this petition under section 482 of the Code of Criminal Procedure (“the Code” for brevity ) for quashing the proceedings. - 2.The aforesaid crime has been registered at the instance of the 2[nd] respondent herein alleging offences punishable under Sections 341, 323, 394 and 506 read with Section 34 of the IPC and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act 33 of 1989'). - 3.The sum and substance of the allegation against the petitioners are to the effect that they are employees of the Naval Armament Depot ( NAD) where the 2[nd] respondent is working as a Mechanic. On 20.12.2016, at about 9 a.m., Crl.M.C. No. 978 of 2017 -2- while the 2[nd] respondent was on his way from his quarters to the ground, he was intercepted by the petitioners and an unpleasant conversation ensured between the parties. The 2[nd] respondent alleges that he was called by his caste name by the petitioners. It is further alleged that he was criminally intimidated and he was told that it was high time that he was made to flee from the the place. Late in the evening while the 2[nd] respondent had returned home with his wife and daughter, the petitioners were found standing outside his home. It is alleged that the 2[nd] respondent was pulled down from the scooter. Thereafter the petitioners are alleged to have physically assaulted the 2[nd] respondent and his wife after abusing him by calling his caste name. It is further alleged that the 2[nd] petitioner stamped the wife of the 2[nd] respondent and the 1[st] petitioner dealt a blow on his head with an iron rod causing an injury on his right eye brow. The 2[nd] respondent also alleges that he was assaulted by all the Crl.M.C. No. 978 of 2017 -3- petitioners. He was removed to the hospital by one Sarath and he was examined at 9.15 p.m., on 20.12.2016. On the basis of the information furnished from the hospital, his statement was recorded and the crime was registered as aforesaid. - 4.Heard Sri S.Radhakrishnan, the learned Counsel appearing for the petitioners, Sri K.T.Saju, the learned counsel appearing for the 2[nd] respondent and also the learned Public prosecutor. - 5.According to the learned counsel, the registration of the crime is a classic case of abuse of the provisions of Act 33 of 1989. The petitioners as well as the 2[nd] respondent are rival union members of the NAD and the only intention of the 2[nd] respondent is to exploit his status as a member of the scheduled caste and to slap the petitioners with allegations of having committed a grave crime. It is pointed out that raising more or less similar allegations, a person by name Vijayan had given information against the Crl.M.C. No. 978 of 2017 -4- petitioners before the Edathala Police Station and the said incident is said to have occurred about half an hour prior to the incident in the instant crime. According to the learned Counsel, even if the allegations are admitted as true, allegation of having committed offence punishable under Act 33 of 1989 is raised only against the 1[st] petitioner. The petitioners 2 and 3 are innocent of the allegations is the submission. Relying on an unreported decision of the Delhi High Court in **Asha Agarwal V State** ( Crl M.C. No 2757 of 2008 ) it was argued that the ingredients of the offence under section 3 of Act 33 of 1989 was not made out. According to the learned counsel, the Act was enacted with a laudable object and it was not intended to be used for settling personal scores. It is further urged by the learned counsel that the basic ingredients of the offence under Section 3(1)(x) of Act 33 of 1989 is that there must be an intentional insult or intimidation with intent to humiliate a scheduled caste or Crl.M.C. No. 978 of 2017 -5- scheduled tribe member by a non scheduled caste or scheduled tribe member and that insult must have been done in a place within public view. In the instant case, it is submitted that the petitioners being political leaders and members of the Union cannot be expected to humiliate or defame a coworker. It is further submitted that based on the information furnished by the 2[nd] petitioner herein Crime No.1923 of 2016 has been registered arraying the 2[nd] respondent herein and 5 others as accused. This according to the learned counsel would show that there was a scuffle between the parties which did not warrant implication of the petitioners under the provisions of Act 33 of 1989. The learned counsel would also rely on the decision of the Delhi High Court in **Mukesh Kumar Saini & Others v. State (Delhi Administration** ) (2001 Cr.L.J. 4587) to buttress his submissions. Finally it is submitted that there is bar under Section 18 of the Act 33 of 1989 to move for pre-arrest Crl.M.C. No. 978 of 2017 -6- bail and if the petitioners herein, who are Central Government employees, are arrested and detained in connection with the offence, they will be placed under suspension under the relevant rules. 6.The learned Counsel appearing for the 2[nd] respondent would counter the submissions and would contend that the powers of this Court under section 482 of the Code, though extraordinary and wide, should be exercised only in the rarest of cases. Referring to the statement of the 2[nd] respondent, it is submitted that the allegations prima facie constitute the offences alleged and the truthfulness or falsity of the same cannot be adjudicated in a petition under section 482 of the Code of Criminal Procedure. According to the learned Counsel, several persons had witnessed the acts of the petitioners and the investigation being at the infancy stage, no interference is warranted. - 7.The learned Public Prosecutor would endorse the submissions of the 2[nd] respondent and would submit that Crl.M.C. No. 978 of 2017 -7- the contentions now advanced cannot be considered at this stage. The public prosecutor also reminded this Court of the contours of power of this Count under section 482 of the Code and submitted that interference is warranted only in the rarest of cases. 8.It is by now settled that terminating criminal proceedings at the threshold itself, or at the stage of FIR is to be exercised only in the rarest of rare cases and with great circumspection. It is by now settled that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, more so when the investigation is at the infancy stage. Section 482 of the Code is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without a full-fledged enquiry. Though High Court may exercise its power to prevent abuse of process of any Crl.M.C. No. 978 of 2017 -8- Court or otherwise to secure the ends of justice, the power has be exercised sparingly and with circumspection. The interference must be on sound principles and the inherent power cannot be exercised to stifle a legitimate prosecution. ## 9.In **Kurukshetra University v. State of Haryana** [1977 (4) SCC 451, the Apex Court had laid down as follows : “It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.” ## 10.In **Som Mittal V Government of Karnataka** [2008 (3) SCC 574], it was observed as follows:- Crl.M.C. No. 978 of 2017 -9- “We may observe here that despite this Court has consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.” 11.After going through the allegations and the accompanying materials, I am of the view that this is not a fit case in which, the powers under section 482 can be exercised at this stage. It cannot be said at this stage that Crl.M.C. No. 978 of 2017 -10- the allegations made in the First Information Report do not prima facie constitute any offence or make out a case against the accused. This is also not a case wherein on the basis of the materials available, it can be held that the criminal proceeding is manifestly attended with mala fide and raised with a view to spite the petitioners. The petitioners are alleged to have acted in prior concert and section 34 of the IPC is also incorporated . At this stage, it cannot be argued that they can only be held responsible for their individual acts. I refrain from passing opinion on the merits of the allegations at this stage lest it affect the case of either the prosecution or the accused. 12.However, the petitioners will be at liberty to approach the concerned Court and seek for Bail. If any such application is filed before court below, with due notice to the concerned prosecutor, the Court below shall consider the same and pass appropriate orders, ideally, on the date of surrender itself. The question whether on the basis of Crl.M.C. No. 978 of 2017 -11- the materials the ingredients of the offences under Act 33 of 1989 are made out shall also be considered by the Court. It is also made clear that the observations made in this order has been made for the sole purpose of considering and disposing the petition under section 482 of the Code and the court below shall consider the application for bail, if any filed, untrammelled by any of the observations made in this order This petition is dismissed with the above observations. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/17.02.17