Abdul Jabbar and Others v. State of Kerala and P.T. Tomy

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.` ``` FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 ``` ## `CRL.MC NO. 233 OF 2018` ``` [TO QUASH PROCEEDINGS IN C.C.NO.1619/2016 ON THE FILE OF THE CHIEF ``` ## `JUDICIAL MAGISTRATE COURT, THALASSERY]` ## `PETITIONERS/ACCUSED NO.1, 3 TO 6:` ``` 1ABDUL JABBAR,AGED 60 YEARS,S/O.KUNHU MUHAMMED,MAMMAYIL THEKKEPURAYIL VEEDU,P.O.MATTOOL. 2KRISHNA KUMAR ACCOUNTANT,PRESTIGE EDUCATIONAL TRUST & KANNUR,MEDICAL COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY. 3KRISHNAN ADMINISTRATOR,PRESTIGE EDUCATIONAL TRUST & KANNUR MEDICAL COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY. 4SAHADEVAN OFFICE STAFF,PRESTIGE EDUCATIONAL TRUST & KANNUR MEDICAL COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY. 5SANGEETH OFFICE STAFF,PRESTIGE EDUCATIONAL TRUST & KANNUR,MEDICAL COLLEGE & SUPERFICIALITY HOSPITAL,P.O.ANCHARAKKANDY. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY ``` ## `RESPONDENTS/STATE AND COMPLAINANT:` ``` 1STATE OF KERALA REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031. 2P.T.TOMY,AGED 47 YEARS,S/O.THOMAS,PERUNNAKKOT HOUSE,KOOTHUPARAMBA AMSOM,AMBILADU DESOM,THALASSERY,NIRMALAGIRI P.O,KANNUR-670701. R1 BY SMT. SEENA C. PUBLIC PROSECUTOR R2 BY SHRI P.T.TOMY(PARTY-IN-PERSON) ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 8.12.2022 ``` ``` THE COURT ON 9.12.2022 PASSED THE FOLLOWING: ``` CRL.MC No.233 of 2018 2 ## `O R D E R` ``` The petitioners are the accused Nos. 1 and 3 ``` ``` to 6 in C.C.No.1619/2016 on the file of the Chief ``` ``` Judicial Magistrate Court, Thalassery. The ``` ``` cognizance was taken by the learned Magistrate in ``` ``` the above case on Annexure-1 complaint submitted ``` ``` by the 2[nd] respondent, which was numbered as ``` ``` Crl.M.P.No.5619/2015. The offences alleged are ``` ``` punishable under Sections 120B, 420, 465, 468, 471 ``` ``` r/w. Section 34 of the Indian Penal Code (IPC). ``` ``` 2.The allegation against the petitioners and other accused are as follows: ``` ``` Accused are the persons managing the affairs of the Kannur Medical College. The petitioners entered into a contract with the 2[nd] ``` ``` respondent/complainanttosupplynecessary manpower for filling up the vacancies of security ``` CRL.MC No.233 of 2018 3 ``` staff and other similar workers in the said ``` ``` Medical College for a period of one year. Later, the said period was extended by the management. According to the complainant, based on certain complaints filed by the workers allegedly engaged by the complainant, the Labour Officer, Kannur, ``` ``` issued notice to him seeking his explanation. When the said notice dated 24.01.2014 was received, the 2[nd] respondent approached the 1[st] accused with the ``` ``` said notice, and he assured that he would look after the matters with respect to the said notice and thereby pacified him. Later, he received ``` ``` another notice on 01.02.2014 wherein the 2[nd] ``` ``` respondent/complainant was required to appear ``` ``` before the Labour Officer on 10.02.2014. Upon ``` ``` appearing before the Labour Officer on that date, ``` ``` it came to the notice of the 2[nd] respondent that, as per the records maintained in the District Labour Office, the 2[nd]respondent/complainant ``` CRL.MC No.233 of 2018 4 ``` submitted reply notices to the Labour Officer. The case of the 2[nd] respondent/complainant is that such reply notices were never issued by him, and the same were forged. The complaint was submitted in such circumstances and after conducting an inquiry under Section 202 of Cr.PC, the learned Magistrate had taken cognizance of the same as per the order dated 30.11.2016. This Crl.M.C is filed in such circumstances for quashing all further proceedings pursuant to Annexure-A1 complaint. ``` ``` 3.Heard Sri.S. Rajeev, the learned counsel ``` ``` for the petitioners, Smt.Seena C., the learned Public Prosecutor for the State and the 2[nd] ``` ``` respondent, who appeared in person. ``` ``` 4.One of the crucial contentions put forward by the learned counsel for the petitioners is that, even if the allegations contained in the complaint are taken as correct, no offence against ``` CRL.MC No.233 of 2018 5 ``` the petitioners would be attracted. It is further contended that, the complaint was not submitted by following the procedure contemplated by the Hon’ble Supreme Court in the decision reported in Priyanka Srivastava v. State of U.P.[2015(2)KLT 451(SC)], wherein it was stipulated that the complaint has to be accompanied by an affidavit in ``` ``` support of the allegations. It is also contended that, while taking cognizance of the complaint, there was no proper application of mind by the learned Magistrate, and the order by which the cognizance was taken does not reflect the ``` ``` satisfaction of the learned Magistrate as to whether the offences are attracted or not. ``` ``` 5.On the other hand, the 2[nd] respondent who appeared in person, opposes the said contention by pointing out that the learned Magistrate had taken cognizance of the offence after recording his statement, and under no circumstances can the same ``` CRL.MC No.233 of 2018 6 ``` be interfered with. It is pointed out that the contentions raised by the petitioners with regard to the ingredients of the offence are a matter which has to be considered during the course of trial and the same is beyond the scope of the proceedings under Section 482 Cr.PC. ``` ``` 6.I have gone through the materials placed on ``` ``` record. As mentioned above, one of the most crucial contentions raised by the petitioners is that, while taking cognizance of the Annexure-A1 ``` ``` complaint, there was no proper application of mind by the learned Magistrate. The order by which the ``` ``` learned Magistrate took cognizance was passed on ``` ``` 30.11.2016 which reads as follows: ``` ``` “Cognizance states u/s 120B, 420, 465, 468, 471 r/w. 34 IPC. Taken on file as CC 1619/2016. Summons to accused by Registered Post.” ``` ``` 7.On going through the aforesaid order, ``` ``` I find some force in the contention put forward by ``` CRL.MC No.233 of 2018 7 ``` the learned counsel for the petitioners. This is mainly because it is a well settled position of law that, while taking cognizance, the order must reflect that the learned Magistrate has applied his mind to the facts of the case. In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998)5 SCC 749], it was observed by the Hon’ble Supreme Court as follows: ``` ``` “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” ``` CRL.MC No.233 of 2018 8 ``` The Hon’ble Supreme Court inBirla Corporation Ltd. and Another v. Adventz Investments and Holdings Ltd. and Others [(2019)16 SCC 610] it was observed in paragraph 34 of the said decision as follows: ``` ``` “34. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under:- ``` ``` “22. ….the Code of Criminal Procedure requires speaking order to be passed underSection 203Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation underSection 202Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused underSection 204Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where theMagistrateproceedsunderSections ``` CRL.MC No.233 of 2018 9 ``` 190/204Cr.P.C., the High Court underSection 482Cr.PC. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self- respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” ``` ``` In the light of the aforesaid observations made by the Hon’ble Supreme Court and the principles laid down therein, it was obligatory on the part of the learned Magistrate concerned to record the reasons for taking cognizance. The satisfaction to issue ``` ``` summons based on the appreciation of materials produced along with the complaint has to be ``` ``` reflected in the order of taking cognizance. It is ``` ``` not necessary that at the stage of issuance of ``` ``` process to the accused, a detailed order is to be passed. However, the order must contain the materials explaining the reasons for arriving at the satisfaction briefly. ``` ``` 8.When taking into account the order passed ``` CRL.MC No.233 of 2018 10 ``` by the learned Magistrate in this case by which ``` ``` cognizance was taken, I am of the view that, the ``` ``` same does not indicate any satisfaction on the ``` ``` part of the learned Magistrate as to the materials ``` ``` placed on record and the adequacy of the same for ``` ``` taking cognizance. It appears that the cognizance ``` ``` was taken in a mechanical manner which is not ``` ``` permissible in the light of the principles laid down by the Hon’ble Supreme Court. In such ``` ``` circumstances, the matter requires to be ``` ``` reconsidered and, therefore, the order of taking cognizance, which is produced as Annexure-V in this Crl.M.C., is set aside, and the matter is ``` ``` remanded back to the learned Magistrate to re- ``` ``` consider the same. It is further clarified that, ``` ``` as the petitioners specifically raised a ``` ``` contention that the filing of the complaint was without complying with the requirements stipulated by the Hon’ble Supreme Court inPriyanka ``` CRL.MC No.233 of 2018 11 ``` Srivastava’s case (supra), while re-considering the complaint, the said aspect shall also be taken into consideration. ``` ``` This Crl.M.C. is disposed of subject to the ``` ``` above. ``` ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.MC No.233 of 2018 12 ## `APPENDIX OF CRL.MC 233/2018` ``` PETITIONERS’ ANNEXURES ANNEXURE ICERTIFIED COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT ANNEXURE IITRUE COPY OF THE AGREEMENT DATED 31.10.2011 EXECUTED BETWEEN THE MANAGEMENT AND THE 2ND RESPONDENT ANNEXURE IIITRUE COPY OF THE REGISTRATION CERTIFICATE DATED 10.10.2012 ISSUED IN FAVOUR OF THE 2ND RESPONDENT. ANNEXURE IVA TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE CHAIRMAN, KANNUR MEDICAL COLLEGE. ANNEXURE VCERTIFIED COPY OF THE ORDER TAKING COGNIZANCE IN C.C.NO.1619/2016 DATED 30.11.2016 ANNEXURE VITRUE COPY OF THE LETTER DATED 11.12.2013 ``` ## `RESPONDENTS’ ANNEXURES` |`ANNEXURE R2(A)`|`JUDGMENT DT.12.01.2017 OF CJM, COURT,`| |---|---| ||`THALASSERY`| |`ANNEXURE R2(B)`|`JUDGMENT DATED 16.3.2017 OF CJM COURT,`| ||`THALASSERY`| |`ANNEXURE R2(C)`|`JUDGMENT DT.5.6.2018 OF CJM COURT, THALASSERY`| |`ANNEXURE R2(D)`|`LETTER DT.28.2.2018 ISSUED BY DISTRICT POLICE`| ||`CHIEF, KANNUR`| |`ANNEXURE R2(E)`|`LETTER DT.5.3.2018 ISSUED BY DY. S.P., KANNUR`| |`ANNEXURE R2(F)`|`LETTER`<br>`DT.15.3.2018`<br>`ISSUED`<br>`BY`<br>`SHO,`| ||`CHAKKARAKKAL PS`| |`ANNEXURE A1`|`APPOINTMENT LETTER ISSUED BY THE PETITIONER`| ||`NO.3 TO THE RESPONDENT AS THE MANAGER OF PARK`| ||`ROYALE HOTEL`| |`ANNEXURE A2`|`COMPROMISE DOCUMENT EXECUTED BY THE`| ||`RESPONDENT ON BEHALF OF HOTEL PARK ROYALE`| ||`ENTRUSTED BY THE MANAGEMENT`| |`ANNEXURE A3`|`RECEIPT ISSUED BY THE CENTRAL POLICE STATION,`| ||`ERNAKULAM TO THE RESPONDENT ON A COMPLAINANT`| ||`GIVEN ON BEHALF OF HOTEL PARK ROYALE`| |`ANNEXURE A4`|`COMMUNICATION AND REPLY FOR THE COMPLAINT`| ||`GIVEN BY RESPONDENT IN THE CHAKKARAKKAL`| ||`POLICE STATION, DY.S.P. OFFICE THALASSERY,`| ||`S.P.OFFICE KANNUR AND HOME MINISTER`| |`ANNEXURE A5`|`REPLY FOR THE COMPLAINT GIVEN BY RESPONDENT`| CRL.MC No.233 of 2018 13 ||`IN THE CHAKKARAKKAL POLICE STATION, DY.SP`| |---|---| ||`OFFICE THALASSERY, S.P.OFFICE, KANNUR AND`| ||`HOME MINISTER`| |`ANNEXURE A6`|`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE`| ||`PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR`| ||`CLEARING SALARY FOR CLEANING EMPLOYEES OF`| ||`ANJARAKANDY MEDICAL COLLEGE`| |`ANNEXURE A7`|`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE`| ||`PETITIONER NO.2 & 4 TO THE RESPONDENT FOR`| ||`CLEARING SALARY FOR CLEANING EMPLOYEES OF`| ||`ANJARAKANDY MEDICAL COLLEGE, WITH SERVICE`| ||`TAX.`| |`ANNEXURE A8`|`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE`| ||`PETITIONER NO.2 TO RESPONDENT FOR CLEAR THE`| ||`WAGES OF CLEANING STAFF OF ANJARAKANDY`| ||`MEDICAL COLLEGE`| |`ANNEXURE A9`|`COPY OF THE CHEQUE SINGED AND ISSUED BY THE`| ||`PETITIONER NO.1 TO THE RESPONDENT FOR`| ||`CLEARING THE WAGES OF CLEANING STAFF OF`| ||`ANJARAKANDY MEDICAL COLLEGE`| |`ANNEXURE A10`|`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE`| ||`PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR`| ||`CLEARING THE WAGES OF CLEANING STAFF OF`| ||`ANJARAKANDY MEDICAL COLLEGE.`| |`ANNEXURE A11`|`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE`| ||`PETITIONER NO.2 & 4 TO THE RESPONDENT FOR`| ||`CLEARING THE WAGES OF CLEANING STAFF OF`| ||`ANJARAKANDY MEDICAL COLLEGE`| |`ANNEXURE A12`|`COPY OF THE CHEQUE SIGNED AND ISSUED BY THE`| ||`PETITIONER NO.2 AND 4 TO THE RESPONDENT FOR`| ||`CLEARING THE WAGES OF CLEANING STAFF OF`| ||`ANJARAKANDY MEDICAL COLLEGE`| |`ANNEXURE A13`|`DOCUMENT SHOWING PAYMENT LIST OF EMPLOYEES`| ||`ISSUED BY THE PETITIONER 2 AND 4 FOR THOSE`| ||`EMPLOYEES NOT PARTICIPATING EMPLOYEES STRIKE`| |`ANNEXURE A14`|`COPY OF THE BIO-DATA OF 48 TEMPORARY`| ||`EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES`| ||`STRIKE AS DEMANDED BY THE MEDICAL COLLEGE`| ||`MANAGEMENT. THE 1ST PETITIONER HEREIN GOT`| ||`POLICE PROTECTION ORDER FROM THE HON’BLE HIGH`| ||`COURT IN 2013 AGAINST 7 OUT OF 48 TEMPORARY`| ||`(SERIAL NO.11 TO 17) IT SHOWS THAT THESE`| ||`TEMPORARY WORKERS WERE DIRECTLY EMPLOYED BY`| ||`THE PETITIONER NO.1 IN 2013-2014.`| |`ANNEXURE A15`|`COPY OF THE BIO-DATA OF 10 TEMPORARY`| ||`EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES`| ||`STRIKE AS DEMANDED BY THE MEDICAL COLLEGE`| CRL.MC No.233 of 2018 14 ``` MANAGEMENT. ``` ||`MANAGEMENT.`| |---|---| |`ANNEXURE A15(A)`|`COPY OF THE BIO-DATA OF 10 TEMPORARY`| ||`EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES`| ||`STRIKE AS DEMANDED BY THE MEDICAL COLLEGE`| ||`MANAGEMENT`| |`ANNEXURE A15(B)`|`COPY OF THE BIO-DATA OF 10 TEMPORARY`| ||`EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES`| ||`STRIKE AS DEMANDED BY THE MEDICAL COLLEGE`| ||`MANAGEMENT`| |`ANNEXURE A15(C)`|`COPY OF THE BIO-DATA OF 11 TEMPORARY`| ||`EMPLOYEES ISSUED FOR COMPROMISING EMPLOYEES`| ||`STRIKE AS DEMANDED BY THE MEDICAL COLLEGE`| ||`MANAGEMENT`| |`ANNEXURE A16`|`COPY OF THE NEWS SHOWING EMPLOYEES STRIKE AT`| ||`ANJARAKANDY MEDICAL COLLEGE`| |`ANNEXURE A17`|`COPY OF THE AGREEMENT BETWEEN AMAL AMENITIES`| ||`AND ANJARAKANDY MEDICAL COLLEGE SIGNED BY`| ||`SMT. BANCY ON BEHALF OF AMAL AMENITIES.`| |`ANNEXURE A18`|`COPY OF THE DOCUMENT PROVING OWNERSHIP OF`| ||`PETITIONER NO.1 AS THE OWNER OF HOTELS AT`| ||`BANGALORE & ERNAKULAM`| |`ANNEXURE A1`|`MEMORANDUM OF WRIT PETITION(CIVIL) FILE`| ``` //TRUE COPY// ``` ``` SD/- P.S. TO JUDGE ```