Allen Skariah Thomas v. Ex-DMO Pathanamthitta and Unknown Persons

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 WP(CRL.) NO. 703 OF 2023** **AGAINST ORDER DATED 24.01.2022 IN CRL.M.P NO.1802/2021 OF** **CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA** ## **PETITIONER/COMPLAINANT:** **ALLEN SKARIAH THOMAS @ ALLEN THOMAS @ CYRIL AGED 39 YEARS, S/O THOMAS M.G CONVICT NO.C2706 CENTRAL PRISON, THIRUVANANTHAPURAM - 695012** **BY ALLEN SKARIAH THOMAS(Party-In-Person)** ## **RESPONDENTS/ACCUSED:** - **1 EX-DMO PATHANAMTHITTA** - **2 UNKNOWN PERSONS(WHO ABETTED/CONSPIRED)** ## **SRI.P.NARAYANAN, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON 16.08.2023 DELIVERED THE FOLLOWING:** **-:2:-** W.P.(Crl.) No.703/23 ## **BECHU KURIAN THOMAS, J. ------------------------------------W.P.(Crl.) No.703 of 2023 -------------------------------------** Dated this the 16[th] day of August, 2023 ## **JUDGMENT** The writ petition has been filed by a life convict challenging the order of the Chief Judicial Magistrate, Pathanamthitta dismissing his complaint against the District Medical Officer and various unknown others. 2. A private complaint under section 190 Cr.P.C was filed by the petitioner before the Magistrate's Court alleging that the District Medical Officer and unknown others had committed offences under sections 166, 167, 182, 186, 188, 193, 196, 199, 201, 204, 211, 218, 228, 465, 468, 469, 471, 500 and 501 of the Indian Penal Code, 1860 read with section 197 of the Contempt of Courts Act, 1971. The Chief Judicial Magistrate closed the complaint as being vague and ambiguous. It was also found that no offence has been made out and that the complaint appears to be groundless. 3. The allegations in the complaint written by the petitioner from the Central Prison were deciphered with great difficulty. The complaint alleges an incident relating to covid vaccination of his mother. Petitioner’s brother is working at Hotel Le Meridian International in Kochi. On 01.04.2021, W.P.(Crl.) No.703/23 **-:3:-** petitioner's brother took his mother for the first dose of Covid vaccination. The vaccine was taken using the mobile number of petitioner's brother. It was alleged that the second dose of vaccination could not be taken through the mobile number of petitioner’s brother, and therefore, on 26.06.2021, petitioner's mother obtained a spot registration and requested the addition of his brother's mobile number since the first dose of vaccination was taken using that number. The Health Centre at Elanthur declined the request to add the brother's mobile number and added another mobile number from the Aadhaar Card of petitioner's mother, which was disconnected long ago. 4. Petitioner complained that since the first and second dose of vaccination must be through the same mobile number and the authorities used the old disconnected mobile number of petitioner's mother for the second dosage, it became difficult for petitioner's mother to obtain the second dose vaccination certificate on her own. Alleging that the rules for Covid vaccination cannot be changed, petitioner complained to the Permanent Lok Adalat at Pathanamthitta, who obtained a report from the District Medical Officer (for short 'DMO'). As per the report of the DMO dated 25.10.2021, the allegations were found to be incorrect after conducting an enquiry. According to the enquiry report, documents relating to the first dose of vaccine allegedly given to the petitioner's mother were not found available on search and therefore, vaccination was W.P.(Crl.) No.703/23 **-:4:-** given using the Aadhaar Card as an identity. It was also stated in the report that the mobile number through which the first dose of vaccination was allegedly taken did not convey any details about the vaccination, and therefore the mobile number given by the petitioner's mother herself was used to register her for the second dose of vaccine. The enquiry further revealed that in the Cowin Portal, the mobile number given for the first dose and the second dose, as stated by the petitioner, was incorrect since no one in Pathanamthitta District had taken vaccination on such a mobile number and also that the given beneficiary ID contained only 13 numbers instead of the required 14. The report further stated that, at any rate, if a new mobile number had to be added, an option was available with the Cowin Portal by raising an issue therein and hence, the complaint of the petitioner was stated to be baseless. The said report of the DMO submitted to the Permanent Lok Adalat was made the basis of the private complaint filed by the petitioner before the Chief Judicial Magistrate. 5. Petitioner alleged that the DMO had committed the offences under sections 166, 167, 182, 186, 188, 193, 196, 199, 201, 204, 211, 218, 228, 465, 468, 469, 471, 500 and 501 of the Indian Penal Code, 1860 read with section 197 of the Contempt of Courts Act, 1971 as according to him, an executive officer of the State had filed a false report before a judicial forum. Petitioner has also claimed witness protection for his brother and mother and stated that since DMO did not act in good faith, **-:5:-** W.P.(Crl.) No.703/23 sanction under section 197 Cr.P.C is not required. 6. The learned Chief Judicial Magistrate, on perusing the complaint, found the allegations to be vague and ambiguous and also that no offence was made out from the complaint. It was also found that the complaint appears to be vague, groundless, and hence closed, the complaint. 7. Challenging the closure/dismissal of the complaint, a Criminal Revision Petition was filed by the petitioner from the Central Prison 'under Article 227 of the Constitution of India' and under section 482 of Cr.P.C. When the Registry noted certain defects, the petitioner attempted to cure the same by overwriting the word 'revision' with 'writ'. Even thereafter, when the Registry raised an objection, the petitioner requested that the matter be posted before the court. When the case came up before this Court on 12.07.2023, the objections of the Registry were overruled, considering the fact that the petitioner is a convict and directed the writ petition to be numbered and posted for admission. 8. Petitioner argued the case by himself through video conferencing from the Central Prison and submitted that the impugned order of the Chief Judicial Magistrate was irregular as the Magistrate could not have dismissed or closed the complaint. 9. The learned Public Prosecutor pointed out that the petitioner is filing the case from the prison through the grievance box even on behalf of other persons who have no difficulty in filing cases by themselves. It was W.P.(Crl.) No.703/23 **-:6:-** submitted that petitioner is misusing the liberty granted, especially since petitioner's mother and brother, both of whom are not in jail and had not preferred any complaint. It was further pointed out that the complaint has been filed against the DMO for submitting an enquiry report, at the request of the Permanent Lok Adalat and since he was acting in discharge of duty sanction was essential. The Prosecutor further submitted that a reading of the complaint does not reveal any offence having been committed and that the attempt of the petitioner is to harass the Government Officials for no reason, that too for submitting a report as requested by the Permanent Lok Adalat. As a public servant, the DMO was entitled to statutory protection and that these are cases where the public servants must be protected from unnecessary harassment. 10. I have considered the rival contentions. 11. A reading of the complaint filed by the petitioner before the Magistrate reveals that there is an absence of any allegation regarding any cognizable offence having been committed by the DMO. On the basis of a complaint submitted by the petitioner to the Permanent Lok Adalat, the DMO was requested to enquire and submit a report as a pre-litigation step. Based on the information collected by the DMO, the enquiry report was submitted to the Permanent Lok Adalat. Petitioner questions the veracity of the conclusions arrived at by the DMO in the enquiry report. Numerous offences are alleged against the DMO for submitting the W.P.(Crl.) No.703/23 **-:7:-** enquiry report. 12. The nature of offences that arise from the report of the DMO is not discernible from the complaint of the petitioner. Though several sections have been quoted in the complaint, the allegations do not constitute any of those offences. In view of the above, the conclusion of the learned Magistrate in the impugned order cannot be said to be wrong or irregular. 13. When the allegations made in the complaint, taken at their face value, make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence alleged against the accused, the Magistrate must be entitled not to issue process to the accused. Similarly, where the allegations made in the complaint are patently absurd or inherently improbable that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused or where the complaint suffers from fundamental legal defects, such as want of sanction, the Magistrate must be entitled to dismiss the complaint. 14. Section 190(1)(a) of Cr.P.C refers to a ‘complaint of facts constituting such offence.’ If the Magistrate is of the opinion that the complaint does not contain facts which constitute the offences alleged, it is within his domain not to proceed further. 15. In the decision in **Smt.Nagawwa v. Veeranna Shivalingappa** **-:8:-** W.P.(Crl.) No.703/23 **Konjalgi and Others** [(1976) 3 SCC 736], the Supreme Court categorised the cases where the issuance of process to the accused can be quashed or set aside. The circumstances mentioned include:(1) where the complaint does not disclose the essential ingredients of an offence, or (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;(3) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. 16. If the issuance of process to the accused can be quashed on the above grounds, then certainly, the Magistrate is entitled not to issue process to an accused when the above circumstances arise from a complaint. In the process of taking cognizance and issue of process to the accused, the Magistrate has to form an opinion that a prima facie case is made out against the accused. At that stage, the Magistrate is also competent to consider whether there are inherent improbabilities appearing on the face of the complaint. It was further observed in the Nagawwa’s Case (supra) that “ _the Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion, it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the_ **-:9:-** W.P.(Crl.) No.703/23 _Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused_ ”. 17. The decision in **Nagawwa’s case** (supra) was relied upon by the Supreme Court in **Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others** [(2015) 12 SCC 420], where it was even observed that if the complaint on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under section 190(1)(a) Cr.P.C and the complaint can simply be rejected. ( _see paragraph 21_ ). 18. In view of the above decisions, the Magistrate is empowered, in appropriate cases, to dismiss the complaint if it is groundless or baseless. 19. Apart from the above, the complainant has arrayed the District Medical Officer as an accused. He had submitted a report pursuant to the direction of the Permanent Lok Adalat. It is not discernible from the complaint whether the said Authority had directed registration of any crime against the Officer or as to the stage of the proceedings before the Permanent Lok Adalat. Further, the DMO was obviously acting in the discharge of his duty when called upon to submit a report. No sanction has been produced to prosecute the said officer even. Viewed in the above perspective also, there is no ground to interfere with the discretion exercised by the Magistrate. 20. Apart from the above, the remedy of a person, if aggrieved by **-:10:-** W.P.(Crl.) No.703/23 the order of the Magistrate closing a complaint, is to prefer a revision petition and not a writ petition. Though this Court had overruled the objection of the Registry, considering that the petitioner is a convict, legally, when a revision is maintainable, a writ petition cannot be entertained circumventing the statutory provision. However, since the objections were overruled by this Court at the initial stage the maintainability of the writ petition has not been taken up as an issue. Since I have already held that the impugned order does not suffer from any illegality, irregularity or impropriety, this writ petition lacks merit and it is dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** vps /True Copy/ PS to Judge