Abu Haneefa v. State of Kerala and Renjith George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943** **CRL.MC NO. 2632 OF 2017** ## **PETITIONER/ACCUSED** ABU HANEEFA AGED 32 YEARS S/O KUNHALAN, AGED 32 YEARS,CHULLIYIL HOUSE, KURUVA,KOOTTILANGADI, MALAPPURAM DISTRICT. BY ADV SRI.U.K.DEVIDAS ## **RESPONDENTS/STATE AND COMPLAINANT** 1 STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE,KOLATHUR POLICE STATION THROUGH THE PUBLIC,PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2 VICTIM BY PP SRI. RENJITH GOERGE (Sr.) SRI.K.RAKESH **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.11.2021, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING:** Crl.M.C.2632/2017 2 ## **ORDER** ## **Dated : 26[th] November, 2021** 1. This Crl.M.C has been filed seeking to quash the entire further proceedings against the petitioner in Crime No. 352/2014 of Kolathur police station. Petitioner is the sole accused in above said Crime, which has been registered for the offence punishable under Sections 323, 376, 420 and 450 of IPC. 2. The prosecution allegation is that on 26.03.2014 at about 2.30 p.m., accused trespassed into the bedroom of the defacto complainant, caught hold of her and slapped her and thereafter committed rape on her. Subsequently he alleged to have repeated the act onfour other occasions. 3. According to the petitioner, the case is totally a falsely fabricated case against him. The petitioner was conducting a small business in the room owned by the 2[nd] respondent. The de facto complainant demanded to vacate the shop room and also demanded some Crl.M.C.2632/2017 3 amounts towards damages. The petitioner requested for one year time to vacate the shop room for shifting the business. Thereafter she filed Annexure-I complainant before the Circle Inspector of Police, Women cell, Malappuram. She alleged that the petitioner worked as an employee in the shop owned by the 2[nd] respondent and demanded to repay Rs. 1,50,000/- and 5 sovereigns of gold ornaments. It is also contended by the learned counsel for the petitioner that after considering complaint and conducted enquiry, Annexure-I complainant was closed and parties were directed to initiate appropriate proceedings through court. Annexure-II is the copy of the true extract of the register of complaint in the women cell. After closing of Annexure I complaint on 30.05.2014, the petitioner had surrendered the key of shop room and vacated the premises. But the 2[nd] respondent filed complaint before the District Superintendent of Police, Malappuram on 30.09.2014 and it was forwarded to the Dy.S.P. of Police, Crl.M.C.2632/2017 4 Perinthalmanna. Dy.S.P. forwarded the complaint to the Circle Inspector, who in turn forwarded the complaint to the Sub Inspector of Police, Kolathur. Accordingly the crime was registered against the petitioner. The copy of the endorsement of the police officials is produced and marked as Annexure-III. Annexure-IV is the copy of the FIR registered against the petitioner. According to the petitioner, the crime was registered without any proper investigation. FIR was registered with respect to monitory dispute between the petitioner and de facto complainant. Offence under Section 376 IPC will not be attracted and hence registration of the FIR is an abuse of process of law and hence he seek for quashing the FIR. 4. Notice was issued to the first respondent/State as well as to the de facto complainant/2nd respondent. The de facto complainant appeared through counsel. 5. Heard both sides. 6. The main contention of the learned counsel for the Crl.M.C.2632/2017 5 petitioner is that he was only a tenant under the de facto complainant and the dispute was with regard to the payment of rent and in connection with that a complaint was also filed which was subsequently settled and thereafter the present complaint has been filed and FIR was registered without any bona fides. 7. The learned Public Prosecutor on the other hand, would contend that this petitioner earlier filed B.A.No.8087/2014 and that application was dismissed with a direction to the petitioner to surrender within ten days. But he did not comply with the order of the Court and again, filed B.A.8895/2016 and as per the order dated 4.1.2017 this Court again disposed of the petition directing him to surrender before the Investigating Officer within a period of 15 days from the date of order. In spite of complying that order, he approached this Court after three months and filed this Crl.M.C and obtained an interim stay and hence the prosecution agency could not conduct the investigation due to the wilful act of Crl.M.C.2632/2017 6 the petitioner and hence he requests for an early dismissal of this petition so as to enable the Investigating Agency to conduct the investigation in a grievous crime involving Section 376 IPC. 8. The learned counsel placed reliance on Annexure-I complaint alleged to have been filed by the de facto complainant before the present complaint, in which according to him, the dispute is with regard to the failure to return the amount and the gold ornaments of her and Annexure-II, the copy of the register with respect to the entry of the receipt of the complaint Annexure-I and subsequent closure of the complaint by Annexure-II/2 directing them to approach the courts. According to him, subsequent to that, on 30.9.2014, this complaint was filed alleging commission of house trespass as well as rape. In this context, it is relevant to quote **M.S.Kuppuswami v. State (1991 (Cri.L.J) 56 [Madras])** wherein it has been held that while exercising the inherent powers of the court or the revisional powers at the preliminary stage, the ## Crl.M.C.2632/2017 7 documents sought to be brought on record by the petitioners cannot be looked into. So at this stage, the documents produced from the side of the petitioner/accused, cannot be looked into by this Court. 9. As per the averments in Annexure-III complaint, the case of the de facto complainant is that the petitioner took the shop rooms on rent in October, 2011 from her and initially he was giving rent regularly and he used to give financial assistance by advancing amount and helped them. Thereafter, he started to receive money from the de facto complainant by pledging the gold ornaments which according to her, is Rs.97,000/-. Again on several occasions, he had obtained money from her alleging as deposit for conducting the business in the shop and initially he used to give Rs.2000/- towards share of profits and subsequently that also was stopped. 10. Further, it is specifically alleged that on 26.3.2014, when her husband went in connection with Crl.M.C.2632/2017 8 his treatment to hospital at VRC Hospital, Tirur the petitioner trespassed into her house through kitchen area and caught hold of her, gagged her and raped her and also took several nude photographs and threatened her that if it is revealed to anybody she and family will have to commit suicide. He also threatened that if it is revealed to the police, her photographs would be put in Internet and hence she was on the verge of committing suicide and only thinking about the ailing husband and children She could not commit suicide. Thereafter he obtained money on various occasions threatening her about the alleged act of rape and she was forced to give money by borrowing money from several persons. She further alleged that thereafter, on four occasions when she was alone in the house, the accused trespassed into the house and raped her stating about the photographs. Again, in May, 2014 he demanded Rs.2,00,000/- emergently, threatening her by stating that her photographs will come in the hands of all the children at her place Crl.M.C.2632/2017 9 and thereafter she pledged her property and advaced Rs.1,50,000/- to him. According to her, he borrowed about 3.5 Lakhs from her by threatening and cheating her. Then, he again started demanding money alleging that his marriage has been arranged and she has to further advance Rs.1,00,000/- or else he would put her photographs in Internet and having no other way, she had filed the complaint. According to her, though initially complaint has been filed to Malappuram Woman Cell, Circle Inspector, Malappuram and Perinthalmanna Circle Inspector, no action has been taken and hence she filed this complaint to the District Police Chief, Malappuram. In pursuance of the same, Annexure-IV FIR was registered. 11. So the question is whether the prayer of the petitioner to quash the FIR is allowable in the above backdrop. 12. In this context, it is relevant to quote **Union of India v. B.R.Bajaj (AIR 1994 SC 1256)** wherein while dealing with Section 482 Cr.P.C it has been held by Crl.M.C.2632/2017 10 the Apex Court that when allegations in the FIR disclose commission of a cognizable offence, high court cannot go into the question whether the offence alleged in the FIR were made out or not and it is also held that statutory power of police to investigate cannot be interfered with in exercise of inherent power of the High Court. It is also held that it is not proper in treating the whole matter as if it was an appeal against conviction. 13. It is relevant in this context to quote **R.P. Kapur v.** **State of Punjab [AIR 1960 SC 866]** wherein while dealing with the inherent power of the High Court it has been held that inherent power of High Court cannot be exercised in regard to matters specifically covered by the other provisions of the Code. It is also held that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is also held that ordinarily criminal Crl.M.C.2632/2017 11 proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. 14. In paragraph 104 of **State of Haryana and Others v. Ch.Bhajan Lal and Others (AIR 1992 SC 604 = 1992 SCC (Cri) 426)** it has been held that :- In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima Crl.M.C.2632/2017 12 facie constitute any offence or make out a case against the accused 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or Crl.M.C.2632/2017 13 where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge ## 15. In **CBI v. Ravi Shankar Srivastava [AIR 2006 SC 2872]** , it has been held that the inherent jurisdiction is to be exercised carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. In **State of West Bengal v. Swapan Kumar Guha [AIR 1982 SC 949]** and also in **Rupam Deol Bajaj v. Kanwar Pal Singh Gill [AIR 1996 SC 309]** it has been held that the power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of Crl.M.C.2632/2017 14 allegations made in the FIR or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. 16. So from the above settled principles of law, it has to be bear in mind that the quashing of FIR to be adopted by the High Court by exercising the inherent powers vested under Section 482 Cr.P.C only in rarest of rare cases when there are materials prima facie to show that the allegations in the FIR would not constitute an offence. At this stage, this Court is not expected to evaluate the documents produced from the side of the accused and come to a conclusion that it does not tally with the averments in the FIS. In this particular case, the de facto complainant has specifically alleged about the monetary transaction and cheating alleged to have been committed by the petitioner and also has specifically alleged about the act of rape for the first time. Subsequently he alleged to have repeated the act on four occasions Crl.M.C.2632/2017 15 threatening her stating that he would publish nude photographs which he captured in his mobile phone on the alleged day. 17. So on going through the FIS and FIR, prima facie it has been come out that very serious allegations of commission of offence of house trespass and repeated act of rape has been alleged against the petitioner. Hence I am of the opinion that this is not a case to be thrown out at the threshold on a petition filed under Section 482 Cr.P.C by the petitioner. More over, it has come out that this petitioner is also not a law abiding citizen. He approached this Court in the year 1984 by filing an application for pre arrest bail in this crime. That was dismissed by the court which according to the learned Public Prosecutor, was with a direction to surrender within ten days. He did not comply with the order. Subsequently in the year 2016 he filed another Bail Application and that was also disposed of on 4.1.2016 in view of the specific allegation of the petitioner Crl.M.C.2632/2017 16 that his father died and he could not attend the burial of the father and the counsel sought for an opportunity to surrender before the Investigating Officer and to try for regular bail at the earliest. Considering that request, a learned Single Judge permitted him to surrender before the Investigating Officer within 15 days. He did not comply that order and after three months, he filed this Crl.M.C and obtained an interim order from this Court and that is being continued till this date. So the conduct of the petitioner also shows that he is not a law abiding citizen. 18. It is true that the learned counsel for the petitioner also raised a contention that the de facto complainant approached the State Police Chief without filing complaint to the SHO initially and hence there is violation of Section 155(1) Cr.P.C. But there is specific averments in the complaint that she has filed complaint to the Vanitha Cell, Malappuram, Circle Inspector, Malappuram as well as Circle ## Crl.M.C.2632/2017 **==> picture [13 x 8] intentionally omitted <==** Inspector, Perinthalmanna. But no action was taken and hence she was forced to file this complaint to the District Police Chief. Hence the contention so advanced by the learned counsel is also not sustainable. 19. In the above backdrop, Crl.M.C is found to be devoid of any merit and hence dismissed. Sd/- M.R.Anitha, Judge Mrcs/25.11. Crl.M.C.2632/2017 18 ## **APPENDIX OF CRL.MC 2632/2017** PETITIONER ANNEXURE ANNEXURE 1 TRUE COPY OF THE COMPLAINT DATED 30.05.2014 FILED BY THE SECOND RESPONDENT BEFORE THE CIRCLE INSPECTOR OF POLICE, WOMEN CELL, MALAPPURAM DISTRICT. ANNEXURE II TRUE COPY OF THE TRUE EXTRACT OF THE REGISTER OF COMPLAINTS IN THE WOMEN CELL, MALAPPURAM DISTRICT. ANNEXURE III TRUE COPY OF THE COMPLAINT OF THE 2ND RESPONDENT DATED 30-09-2014 WITH ENDORSEMENT OF THE POLICE OFFICIALS. ANNEXURE IV TRUE COPY OF THE FIR IN CRIME NO. 352/2014 OF KOLATHUR POLICE STATION.