Ansar Abdul Azeez v. State of Kerala and Others

Crl.R.P Nos.2027/2014 & 2035/2014 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ## **`CRL.REV.PET NO. 2027 OF 2014`** ``` CC 107/2012 OF CHIEF JUDICIAL MAGISTRATE,THIRUVANANTHAPURAM ``` ## **`REVISION PETITIONER/ACCUSED:`** ``` ANSAR ABDUL AZEEZ, AGED 33 YEARS S/O.ABDUL AZEEZ, ANITHA HOUSE, T.C.NO.35/611-A, P.D.NAGAR, VALLAKKADAVU, TRIVANDRUM, KERALA, PIN 695008. BY ADV SRI.RAJESH NAIR ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2SUDHIR S/O.ABDUL BAKER, T.C./696, (PRA-A-127), PRIYADARSHINI NAGAR, VALLAKADAVU, TRIVANDRUM, KERALA, PIN 695008. ADDL.R3FEMINA W/O SUDHIR, T.C/696 (PRA-A-127), PRIYADRSHINI NAGAR, VALLAKADAVU, TRIVANDRUM, KERALA, PIN-695008. ADDL.R3 IS IMPLEADED AS PER ORDER DTD.13.6.2016 IN CRL.M.A NO.1193/2016 R1 BY SRI SANGEETHA RAJ-PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29.11.2022, ALONG WITH Crl.Rev.Pet.2035/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P Nos.2027/2014 & 2035/2014 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 CRL.REV.PET NO. 2035 OF 2014 AGAINST CC 107/2012 OF CHIEF JUDICIAL MAGISTRATE, ``` ## **`THIRUVANANTHAPURAM`** ## **`REVISION PETITIONER/ACCUSED:`** ``` ANSAR ABDUL AZEEZ, AGED 33 YEARS S/O. ABDUL AZEEZ, ANITHA HOUSE, T.C 35/611 A, P.D. NAGAR, VALLAKADAVU, TRIVANDRUM - 695 008. BY ADV SRI.RAJESH NAIR ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2SUDHIR, S/O. ABDUL BAKER, T.C. 696 (PRA A 127), PRIYADARSHINI NAGAR, VALLAKADAVU, TRIVANDRUM, KERALA - 695 008. ADDL.R3FEMINA W/O.SUDHIR, T.C./696(PRA-A-127), PRIYADARSHINI NAGAR, VALLAKADAVU, TRIVANDRUM, KERALA, PIN - 695 008. ADDL.R3 IS IMPLEADED AS PER ORDER DATED 12.8.2016 IN CRL.M.A NO.1289/2016 ``` ``` R1 BY SRI.SANGEETHA RAJ-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29.11.2022, ALONG WITH Crl.Rev.Pet.2027/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P Nos.2027/2014 & 2035/2014 3 ## O R D E R [Crl.Rev.Pet Nos.2027/2014, 2035/2014] The revision petitioner is the 3[rd] accused in C.C.No.107/2012 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram (for short ‘the court below’).The 3[rd] respondent is the de facto complainant. 2. The offences alleged against the petitioner are punishable under Sections 354, 506 and 384 r/w 34 of IPC and Section 66E of the Information Technology Act. 3. The prosecution case in short is that on 22.5.2010 at 11 am., the petitioner along with the remaining accused in furtherance of common intention to outrage the modesty of the 3[rd] respondent, assaulted her inside the house at Vallakkadavu and one week later inside the toilet of the house situated at Petta. It is also alleged that on the same days, places and time, the petitioner and the remaining Crl.R.P Nos.2027/2014 & 2035/2014 4 accused also intimidated the 3[rd] respondent and took her nude photographs in a mobile phone and further threatened her to publish the nude photographs through internet and media and induced her to deliver a large sum of money. 4. The petitioner, on an earlier occasion, approached this Court by filing Crl.M.C.No.5227/2013 to quash the entire proceedings in C.C.No.107/2017 on the file of the court below alleging that he was not in India on the alleged date of the incident. However, this Court disposed of the said Crl.M.C as per Annexure A9 order giving liberty to the petitioner to move an application seeking discharge at the court below. Accordingly, the petitioner filed C.M.P. No.3058/2014 invoking Section 227 of Cr.P.C seeking discharge. Along with the said application, the petitioner produced a copy of his passport to prove that he was out of India on the alleged date of the incident. However, the court below without going into the merits of the allegation that he was out of India, dismissed the application relying on the decision of the Apex Court in State of Crl.R.P Nos.2027/2014 & 2035/2014 5 Orissa v. Debendra Nath Padhi (2005(1) KLT 80) holding that the accused is not entitled to produce documents at the time of hearing on framing of charge. Thereafter, the court below framed charge against the petitioner and the remaining accused. Crl.R.P.No.2035/2014 has been filed challenging the order in C.M.P.No.3058/2014 dated 1.8.2014 and Crl.R.P.No.2027/2014 has been filed challenging the order of framing charge by the court below dated 1.8.2014. 5. I have heard Sri.Rajesh Nair, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor. There is no appearance for the 3[rd] respondent/de facto complainant. 6. As stated already, the specific case of the prosecution is that the alleged incident took place on 22.5.2010 at 10 am inside the house of the de facto complainant and on a day one week later inside the toilet of the house bearing No.TC 36/93 situated at Petta. The charge has also been framed to that effect. The petitioner has produced the copy of his passport as Annexure A4 in Crl.R.P. Crl.R.P Nos.2027/2014 & 2035/2014 6 No.2027/2014. It would show that he left to Kuwait on 22.4.2010 and came back to Kochi on 29.5.2012. Thus, it is evident that from 22.4.2010 to 29.5.2012 the petitioner was out of India. Thus, the copy of the passport relied on by the petitioner would completely rule out the assertions contained in the charges levelled against him. In other words, the said document is sufficient to reject and overrule the factual assertions contained in the final report. 7. It is true that going by the decision of the Apex Court in Debendra Nath Padhi (Supra), the court while hearing an application for discharge filed by the accused cannot look into the materials produced by the accused. The learned counsel for the petitioner, however, argued that this Court under the exercise of the power under Section 482 of Cr.P.C can very well rely on the copy of the passport produced by the petitioner inasmuch as it would demolish the case projected by the prosecution. Reliance was placed on the decision of the Apex Court in Rajiv Thapar and others v. Madan Lal Kapoor (2013 KHC 4066). There also, the question arose was whether Crl.R.P Nos.2027/2014 & 2035/2014 7 in a revision challenging the order of discharge, the High Court could rely on the documents produced by the accused. It was held that if materials relied upon by the accused is such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false, then the High Court can exercise its power under Section 482 of Cr.P.C to quash the criminal proceedings. 8. It is settled that even while exercising the power under Sections 397 and 401 of Cr.P.C, this Court is competent to exercise the inherent power vested with it under Section 482 of Cr.P.C. It is true that on an earlier occasion, the petitioner has approached this Court by invoking Section 482 of Cr.P.C to quash the proceedings and as per Annexure A9 order, this Court relegated the petitioner to approach the court below seeking discharge. A reading of Annexure A9 would show that this Court did not consider on merits whether Section 482 of Cr.P.C could be invoked to quash the proceedings. Hence, Annexure A9 order is not a bar in invoking Section 482 of Crl.R.P Nos.2027/2014 & 2035/2014 8 Cr.P.C to quash the proceedings. As stated already, the copy of the passport relied on by the accused is such as, would persuade a reasonable person to dismiss and condemn the actual basis of accusations as false. It is clear from the entries in the passport that the petitioner was not at all in India on the date of the alleged incident. Hence, I am of the view that it is a fit case where the power vested with this Court under Section 482 of Cr.P.C could be exercised to quash the proceedings. Accordingly, all further proceedings against the petitioner in C.C.No.107/2012 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram is hereby quashed. The Criminal Revision Petitions are disposed of as above. Sd/- ## DR. KAUSER EDAPPAGATH ## JUDGE ab