Anandavally and Raju v. State of Kerala and Prabhakaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY ,THE 14TH DAY OF SEPTEMBER 2018 / 23RD BHADRA, 1940 Crl.MC.No. 3815 of 2015 AGAINST THE ORDER IN CMP 2988/2014 of J.M.F.C.-II, HARIPAD** ## **PETITIONERS/ACCUSED:** |**1**|**ANANDAVALLY**| |---|---| ||**W/O.RAJU, MANGATTU VEEDU, VALIYAKUZHI MURI,**| ||**CHEPPAD VILLAGE.**| |**2**|**RAJU**| ||**MANGATTU VEEDU, VALIYAKUZHI MURI, CHEPPAD**| ||**VILLAGE.**| ||**BY ADV. SRI.K.SUBASH CHANDRA BOSE**| |**RESPONDENTS/STATE**<br>**:**|| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH**| ||**COURT OF KERALA, ERNAKULAM. 682 031.**| |**2**|**PRABHAKARAN**| ||**AGED 53 YEARS**| ||**S/O.N.C.KUTTAPPAN, NEDUMTHARAYIL, THEKKEKARA**| ||**KIZHAKKU MURI, PALLIPPAD VILLAGE, 682263.**| ||**R2 BY ADVS.**| ||**SRI.ARUN BOSE**| ||**SMT.THARA THAMBAN**| ||**SRI.B.BIPIN**| ||**SRI.M.V.THAMBAN**| ||**SRI.R.REJI**| ||**R1 BY PUBLIC PROSECUTOR SMT M.K. PUSHPALATHA**| CRFL MC NO. 3815/2015 2 **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.06.2018, THE COURT ON 14.09.2018 PASSED THE FOLLOWING:** ## **O R D E R** The petitioners are challenging Annexure 8 order dated 11[th] May 2015 in C.M.P.No.2988/2014 on the file of the Judicial First Class Magistrate II, Haripad and Annexure 9 order to issue summons to them for being arraigned as the accused. 2. Facts in brief are as follows:- The petitioners are husband and wife. They are having a dispute regarding their property with one Gopinathan, who is residing on the southern side of their property. He had filed so many civil cases against these petitioners without any basis. He is involved in many criminal activities and used to pick up quarrel with the petitioners. He had trespassed into their property and committed waste and damages and thereafter instigated the 2[nd] respondent herein to lodge a false complaint against this petitioner, alleging that while he was constructing a fence along the boundary of his property with the assistance of some workers, the petitioners destroyed the stones installed in the boundary and damaged the CRFL MC NO. 3815/2015 3 boundary fence. The further allegation is that the petitioners assaulted the 2[nd] respondent and his men and insulted him by calling his caste name with a view to defame them. With the aforesaid allegations the 2[nd] respondent filed the complaint under the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. (for short 'the Act') The complaint lodged by the 2[nd] respondent was proceeded with by the learned Magistrate and pursuant to Annexure-A8 order, Annexure-A9 summons was issued which is quite illegal, improper and irregular. 3. It is submitted by the learned counsel for the petitioners that the court ought to have found that as per Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules (for short 'the Rules') an officer not below the rank of a Deputy Superintendent of Police has to investigate the case and the court has no jurisdiction to conduct an enquiry. Moreover, the allegation against these petitioners in Annexure-A1 complaint does not disclose an offence under Section 3(1) (x) of the Act. Hence this petition is to quash Annexure A8 and CRFL MC NO. 3815/2015 4 Annexure-A9. 4. Heard Sri. Subashchandra Bose, the learned counsel for the petitioners and Smt. M.K. Pushpalatha, the learned Public Prosecutor. Perused the records. 5. Annexure A1 is the complaint filed by the 2[nd] respondent against these petitioners before the Judicial First Class Magistrate under Sections 190(1)(a) and 200 of Cr.P.C. Annexures A-2 to A6 would show that the learned Judicial First Class Magistrate on receipt the complaint, examined the 2[nd] respondent/de fato complainant and the witnesses cited by him to ascertain whether it is necessary to issue process to the petitioners who are arraigned as the accused. An enquiry as contemplated under Section 202 Cr.P.C was conducted by the learned JFCM and thereafter Annexure-A9 process was issued calling upon the petitioners to appear before the court on the date specifically mentioned in the summons. The learned counsel for the petitioners argued that the procedure adopted by the court below was contrary to the provisions of law and hence the same is liable to be quashed by invoking the inherent jurisdiction of this CRFL MC NO. 3815/2015 5 court. 6. Law is well settled that the statutory power under Section 482 of Code of Criminal Procedure has to be exercised judiciously, sparingly with great caution, care and circumspection. If only the court is fully convinced that the allegations are baseless and no useful purpose will be served if the prosecution is allowed to continue with the investigation or trial, quash the proceedings at the initial stage for the main reason that while exercising the said power, in fact the complainant is not allowed rather prevented from adducing evidence. Therefore, the said power can be exercised only to secure the ends of justice as well to prevent gross abuse of process of any court and that too when it is found inevitable. It is also settled that even a defence of an accused though appears to be reasonable or probable should not be taken into consideration while exercising the inherent power of the High Court under Section 482 Cr.P.C. In short, when it appears that continuation of proceedings would tantamount to abuse of process of law, the inherent powers under Section 482 Cr.P.C can be exercised. A CRFL MC NO. 3815/2015 6 galaxy of decisions rendered by the Hon'ble Supreme Court are there on the subject. A few of those decisions are: _**Gian Singh v. State of Punjab and Another [(2012) 10 SCC 303], Narinder Singh and Others v. State of Punjab and Another [(2014) 6 SCC 466],**_ and _**Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others v. State of Gujarat and another (2018)1 SCC (Cr)1.**_ 7. Rule 5 of the special Act prescribes the procedure to be adopted when an offence is alleged to have been committed against a member of SC/ST community. For the sake of convenience Rule 5 is reproduced below: “5. Information to Police Officer in-charge of a Police Station - (1) Every information relating to the commission of an offence under the Act, if given orally to an officer incharge of a police station shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the persons giving it, and the substance thereof shall be entered in a book to be maintained by that police station. (2) A copy of the information as so recorded under subrule (1) above shall be given forthwith, free of cost, to the informant. CRFL MC NO. 3815/2015 7 (3) Any persons aggrieved by a refusal on the part of an officer in-charge of a police station to record the information referred to in-sub-rule (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who after investigation either by himself or by a police officer not below the rank of Deputy Superintendent of Police, shall make an order in writing to the officer in-charge of the concerned police station to enter the substance of that information to be entered in the book to be maintained by that police station.” 8. Rule 7 deals with the powers of the investigating officer who is empowered to investigate an offence committed under the Act. 9. The learned counsel for the petitioners would submit that since Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a special legislation dealing with certain special and separate offences and the Rules dealing with the procedures for initiating prosecution on the basis of the complaint, the procedure prescribed in the rules alone can be adopted and the conduct of enquiry as per the provisions of Code of Criminal Procedure is illegal. On the other hand the learned CRFL MC NO. 3815/2015 8 Public Prosecutor has contended that the procedure adopted by the Magistrate cannot be said to be against the provisions of law so as to quash the same as claimed by the petitioners. 10. Of course, the Rules framed under the Act deals with the procedure to be adopted by the Police officer in charge of a police station on getting information about the commission of an offence under the Act. The procedure to be adopted by the Investigating Officer, as mentioned above is prescribed in Rule 7. The question to be looked into is whether the procedure adopted by the learned Magistrate by conducting an enquiry under Section 202 of Cr.P.C. is against the provisions of the special Act and Rules and if so whether Annexure A-8 order and issuance of summons pursuant to Annexure A-8 are liable to be quashed . 11. To appreciate the rival contention it is apposite to reiterate Section 202 Cr.P.C. “202. **Postponement of issue of process.** —(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of CRFL MC NO. 3815/2015 9 process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,— (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.” ## 12. In **State through CBI Chennai v. Arul Kumar [AIR** **2016 SC 2551]** it has been held that 'normal procedure prescribed under Section 190 of the Code empowering the Magistrate to take cognizance of such offences though triable by CRFL MC NO. 3815/2015 10 the court of session is not given a go bye. Both alternatives are available'. 13. Applying the principle laid down in the said decision it is not proper to say that the procedure adopted by the Magistrate is not correct and he had no power to proceed under the provisions of Section 190 of the Code of Criminal Procedure. 14. Recently a Single Bench of this Court in **Madhusoodanan Pillai M.R. v. State of Kerala and Another (2018(1)KHC 30),** while dealing with a similar situation has held that if the Magistrate finds that no grounds are made out to proceed with, it was open to the Magistrate to apply section 203 of Cr.P.C. and dismiss the complaint. In case any grounds to proceed with are made out, the course open to the Magistrate is not to take cognizance of the offences; whereas, the Magistrate has to register the proceedings as committal proceedings and then to commit the case to the special court. It is further observed that after amendment of the Act, such a course of action is not required and the Special court have power to take cognizance directly without any committal as per the second CRFL MC NO. 3815/2015 11 proviso to section 14 of the amended Act. 15. In another decision of this Court in a **Suo motu proceedings initiated on a communication received from the Sessions Judge, Kalpetta** ( **Sessions Judge, Kalpetta v. Shyjan and another (2015(5)KHC 258)** it has been observed in para 4 as follows'' “4. On going through S.209 Cr.P.C., it seems that the view taken by the learned Sessions Judge is erroneous. As per S.209 of the Code of Criminal Procedure, 1973, when in a case instituted on a police report or otherwise, the accused appears or brought before the Magistrate, and it appears to the magistrate that the offence is triable exclusively by the Court of Session, he shall commit, after complying with the provisions of S.207 or 208, as the case may be, the case to the Court of Session. Therefore, the only course open to the Magistrate when it appears to him in such a case that the offence is exclusively triable by the Court of Session, is to commit the case to the Court of Session. There is no other provision regarding committal in the Code of Criminal procedure, 1973. When the committal can only be under S.209 Cr.P.C., the Magistrate is empowered to commit the case to the Court of Session only and not to any other Court.” . 14. Here the Magistrate had deviated from the correct procedure and issued Annexure A-9 summons to the petitioners 1 and 2 which is not correct in the light of the decisions referred CRFL MC NO. 3815/2015 12 above. So, Annexures A8 and A9 stand quashed. The Magistrate shall look into the matter afresh and proceed with in accordance with law. Hence, this petition filed to quash Annexures 8 and 9 alone is allowed and the learned Magistrate is directed to proceed in accordance with law on Annexure A1 complaint preferred by the de facto complaint. Accordingly , the petition is disposed of . **Sd/-** **14.09.2018** **SHIRCY V., JUDGE** **ks** CRFL MC NO. 3815/2015 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE P1**|**ANNEXURE-1: TRUE COPY OF THE PRIVATE**| |---|---| ||**COMPLAINT FILED BEFORE THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT II,**| ||**HARIPAD.**| |**ANNEXURE P2**|**ANNEXURE-2: TRUE COPY OF THE DEPOSITION**| ||**OF CW1 PRABHAKARAN.**| |**ANNEXURE P3**|**ANNEXURE-3: TRUE COPY OF THE DEPOSITION**| ||**OF CW2 TOMY.**| |**ANNEXURE P4**|**ANNEXURE-4: TRUE COPY OF THE DEPOSITION**| ||**OF CW3 REGHU.**| |**ANNEXURE P5**|**ANNEXURE-5: TRUE COPY OF THE DEPOSITION**| ||**OF CW4 ANEESH.**| |**ANNEXURE P6**|**ANNEXURE-6: TRUE COPY OF THE DEPOSITION**| ||**OF GOPINATHAN.**| |**ANNEXURE P7**|**ANNEXURE-7: TRUE COPY OF THE ROWDY**| ||**HISTORY SHEET OF SRI.GOPINATHAN.**| CRFL MC NO. 3815/2015 14 |**ANNEXURE P8**|**ANNEXURE-8: TRUE COPY OF THE ORDER**| |---|---| ||**DATED 11.05.2015, IN CMP NO.2988 OF**| ||**2014.**| |**ANNEXURE P9**|**ANNEXURE-9: TRUE COPY OF THE SUMMONSES**| ||**RECEIVED BY THE PETITIONERS ISSUED**| ||**UNDER SECTION 190, 200 3(X) OF SC & ST**| ||**ACT.**|