Abhijith P.K. and Shyju P.K. v. State of Kerala and The Station House Officer, Koyilandy Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** **Crl.MC.No.6701 OF 2019(G)** **CRIME NO.598/2017 OF Koyilandy Police Station , Kozhikode** ## **PETITIONERS/ACCUSED:** **1 ABHIJITH P.K., AGED 23 YEARS SON OF P.K.SATHYAPALAN, KARUVANS HOUSE, CHERIYARUMBAYIL, ULLIYERI P.O., ULLIYERI -19, KOYILANDY (VIA), KOZHIKODE DISTRICT. 2 SHYJU P.K., AGED 46 YEARS SON OF THE MADHAVAN NAIR, PARAKUZHIYIL HOUSE, THURUTHIYAD P.O., BALUSSERY - 673 612, KOZHIKODE DISTRICT.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. 2 THE STATION HOUSE OFFICER, KOYILANDY POLICE STATION, KOZHIKODE DISTRICT - 673 323.** ## **B JAYASURYA-SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-102019, THE COURT ON 15-10-2019 PASSED THE FOLLOWING:** Crl.M.C.No.6701/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.6701 of 2019 ---------------------------------------------Dated this the 15[th] day of October, 2019 ## **O R D E R** This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') to quash the proceedings against the petitioners in Crime No.598/2017 of the Koyilandy police station and the final report filed by the police in that case. 2. The petitioners are the first and the second accused in the aforesaid case. The allegation against them is that they have committed the offences punishable under Sections 452, 332 and 294(b) read with 34 I.P.C and Section 3(1) of the Prevention of Damages to Public Property Act, 1984. 3. The prosecution case is as follows: On 04.05.2017, at about 14.30 hours, the petitioners and another person criminally trespassed into the Regional Transport Office at Koyilandy. The Crl.M.C.No.6701/2019 3 second petitioner used obscene words to the annoyance of the third respondent who was discharging his duties in that office as Assistant Motor Vehicles Inspector. The first petitioner beat the third respondent on his face with his hands and he also hit on his face with a bunch of keys and pushed him down to the ground. The petitioners caused obstruction to the discharge of his duties as a public servant. The petitioners also caused damage to the printer in the office causing a loss of Rs.8,800/- to the Government. 4. The case against the petitioners and another was registered under Sections 452 and 332 read with 34 I.P.C on the basis of the first information statement given to the police by the third respondent. After completing the investigation, charge sheet was filed in the case alleging that the petitioners have committed the offences punishable under Sections 452, 332 and 294(b) read with 34 I.P.C and Section 3(1) of the Prevention of Damages to the Public Property Act, 1984. 5. This application, for quashing the proceedings against them, is filed by the petitioners on the ground that they are not Crl.M.C.No.6701/2019 4 involved in the incident alleged and that they are innocent and that the allegations in the first information statement or the first information report do not constitute the ingredients of the offences alleged against them. 6. Heard learned counsel for the petitioners and the learned Public Prosecutor. 7. I have perused the copy of the first information statement given by the third respondent to the police. There is a specific allegation in that statement to the effect that the petitioners had trespassed into the office of the third respondent and that they put the computer and the files in the office to the ground and that the first petitioner hit on the face of the third respondent with a bunch of keys and pushed him down and caused obstruction to him in discharging his official duties. It cannot be found that these allegations in the first information statement do not constitute the ingredients of the offences punishable under Sections 452 and 332 read with 34 I.P.C. 8. After completing the investigation, the police filed charge sheet against the petitioners, alleging the offences Crl.M.C.No.6701/2019 5 punishable under Section 294(b) I.P.C and Section 3(1) of the Prevention of Damages to the Public Property Act also. Of course, in the first information statement, there is no specific allegation that the petitioners had used obscene words to the annoyance of the third respondent or that they had caused damage to any property of the Government. But, during the investigation of the case, the police had recorded the further statement of the third respondent and also the other witnesses who had seen the incident. The aforesaid statements, prima facie, reveal commission of the aforesaid offences also by the petitioners. 9. The petitioners have obtained and produced an affidavit allegedly sworn to by one Radhakrishnan, who is charge witness No.4 in the witness list filed along with the charge sheet. The statement given by this witness to the police reveals that he had seen the incident. However, in the affidavit allegedly sworn to by this witness, it is stated that he had never seen the incident and that he was not present in Koyilandy Taluk on the date of the alleged incident. On the basis of this affidavit, it is contended by Crl.M.C.No.6701/2019 6 the petitioners that the investigation of the case was tainted. 10. The affidavit allegedly sworn to by the witness Radhakrishnan cannot be acted upon by this Court in this application filed under Section 482 Cr.P.C. He is a prosecution witness. If he had not seen the incident, he would get opportunity to appear before the trial court and depose to that effect. The prosecution case against the petitioners is based not merely on the statement of Radhakrishnan. There are other eye witnesses cited by the prosecution to prove the incident. It is also to be noted that, in this application under Section 482 Cr.P.C, this Court cannot decide whether the statement given by the witness Radhakrishnan to the police is true or not or whether the contents of the affidavit allegedly sworn to by him are true or not. 11. This Court, while hearing an application under Section 482 Cr.P.C., has no jurisdiction to appreciate the statement of the witnesses and record a finding that there are inconsistencies in their statements and, therefore, there is no _prima facie_ case made out against the accused. It could be done only in the trial Crl.M.C.No.6701/2019 7 while deciding the issues on the merits or/and also by the appellate court while deciding the appeal arising out of the final order passed by the trial court but not in proceedings under Section 482 Cr.P.C (See **Devendra Prasad Singh v. State of Bihar : AIR 2019 SC 1671** ). This Court has no jurisdiction to appreciate the evidence in a proceedings under Section 482 Cr.P.C. Whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the trial court during trial when the entire evidence is adduced by the parties (See **Md.Allauddin Khan v. State of Bihar : AIR 2019 SC 1910** ). 12. It is well settled that while dealing with a petition to quash the prosecution, the Court has ordinarily to proceed on the basis of the averments in the complaint. The defence of the accused cannot be considered at this stage. The Court considering the prayer for quashing does not adjudicate upon disputed questions of facts (See **Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency** Crl.M.C.No.6701/2019 8 **Limited : AIR 2016 SC 4363** ). In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency nor can it exercise the powers like an Appellate Court (See **Dineshbhai Chandubhai Patel v. State of Gujarat: AIR 2018 SC 314** ). Where the accused seeks quashing of the F.I.R, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations against the accused. 13. In the aforesaid circumstances, I find that there are no sufficient grounds made out to quash the case against the petitioners. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/11/10/2019 Crl.M.C.No.6701/2019 9 ## **APPENDIX** **PETITIONERS' EXHIBITS: ANNEXURE A TRUE COPY OF THE FIR CRIME NO.598 OF 2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KOYILANDY. ANNEXURE B TRUE COPY OF AFFIDAVIT DT.12/03/2018 SWORN TO BY ONE RADHAKRISHNAN P.P. RESPONDENT'S EXHIBITS: NIL TRUE COPY** **PS TO JUDGE**