Arun C and Sudhakaran K.V. v. State of Kerala and Abdul Basheer M

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 ``` ``` CRL.MC NO. 9679 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT VC 3/2023 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY ``` ## **`PETITIONERS:`** ``` 1ARUN C AGED 40 YEARS S/O. NARAYANAN, CHERUVACHERRY HOUSE, VELLACHAL, KODAKKAD P.O., KASARGOD, PIN - 671310 2SUDHAKARAN K.V. AGED 52 YEARS S/O. KARUTHAMBU P.V., 'NEELANJANAM', VARAKKOTTUVAYAL, PILIKKODU P.O., KASARGOD, PIN - 671310 BY ADV SHABU SREEDHARAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, VACB, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2ABDUL BASHEER M S/O. ABBAS A.P., MUNIYAMKEDU HOUSE, CHAMUNDIKKUNNU, CHITHARI P.O., KASARGOD, PIN - 671316 SRI.RAJESH.A SPL.G.P, SMT.REKHA. P.P ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 9679 OF 2023 ``` ``` 2 ``` K.BABU, J. -----------------------------------Crl.M.C..No.9679 of 2023 -------------------------------------Dated this the 31[st] day of January, 2024 ## **O R D E R** The prayer in this Crl.M.C. is as follows:- “(i) this Hon’ble Court may graciously be pleased to quash the Annexure-2 FIR along with the complaint and all further proceedings thereon pending before the Enquiry Commissioner & Special Judge’s Court, Thalassery so as to secure the ends of justice.” ## Facts. 2. Petitioner No. 1 is the Village Officer, Chithari village in Kasargod District. Petitioner No.2 is the Village Assistant attached to the village office. Respondent No.2 entered into an agreement to purchase 17.5 cents of land from one Khadeeja. The property originally belonged to late Sri.Moideen, the husband of Smt.Khadeeja. In order to execute the sale deed, respondent No.2 wanted the Legal heirship Certificate and a copy of the Thandaper Register. On 05.08.2023 he approached the petitioners for getting the same. The petitioners measured the property on 09.08.2023. They demanded Rs.3,000/- as bribe from respondent No.2. ``` CRL.MC NO. 9679 OF 2023 ``` ``` 3 ``` 3. On 23.08.2023, respondent No.2 filed a complaint before the Dy.S.P. Vigilance, Kasargod. Based on the complaint lodged by respondent No.2 the Vigilance registered FIR as VC.No.03/2023 alleging offence punishable under Section 7(a) of the Prevention of Corruption Act, 1988. The Vigilance laid a trap. The petitioners were arrested on 24.08.2023, while receiving the bribe from respondent No.2. The Vigilance recovered the money from the possession of the petitioners. 4. Heard the learned counsel for the petitioners and the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the allegations levelled against the petitioners are false. The learned counsel also submitted that the petitioners have not received the money as alleged. The prosecution allegations do not disclose the offence alleged. 6. The learned Senior Public Prosecutor placed a copy of the FIS, the First Information Report, statements of the witnesses, the seizure-cum-entrustment mahazar, recovery mahazar and other relevant records in support of the ``` CRL.MC NO. 9679 OF 2023 ``` ``` 4 ``` prosecution case. The FIR contains the specific allegation that on 05.08.2023 and after that, on different occasions, the petitioners demanded money from respondent No.2 as an undue advantage for performing public duties improperly. The seizure cum entrustment mahazar and the recovery mahazar would reveal that on 24.08.2023 petitioner No.1 demanded and accepted Rs.2,000/- from respondent No.2. It is further revealed that petitioner No.2 received Rs.1,000/- from respondent No.2 as bribe. Both the petitioners were arrested along with the bribe money. The detecting officer conducted a phenolphthalein test, which turned positive. The petitioners seek to quash the FIR. 7. It is settled by a long course of decisions of the Apex Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations **{Vide: State of West Bengal** ``` CRL.MC NO. 9679 OF 2023 ``` ``` 5 ``` **v. Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha** . **Rani v. Suraj Kumar [(1985) 2 SCC 370]}** 8. In **State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651],** the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In **State of U.P v. O.P.Sharma [(1996) 7 SCC 705]** , a Three Judge Bench of the Apex Court observed that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another Three Judge Bench of the Apex Court in **Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397]** , wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry ``` CRL.MC NO. 9679 OF 2023 ``` ``` 6 ``` as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in **Mahendra K.C. v. State of Karnataka and Ors. (AIR 2021 SC 5711)** . 9. While dealing with the power under Section 482 Cr.P.C. to quash the criminal proceedings the Apex Court in **M/s.Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and others (AIR 2021 SC 1918)** concluded thus in paragraph 23 of the judgment: “23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under ``` CRL.MC NO. 9679 OF 2023 ``` ``` 7 ``` Article 226 of the Constitution of India, our final conclusions are as under: (i) xxx xxx xxx xxx xxx xxx (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) xxx xxx xxx (xiv) xxx xxx xxx (xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;” 10. In the present case, the petitioners failed to convince this Court that the allegations levelled against them in the prosecution records made available do not disclose the ingredients of Section 7 of the PC Act. The correctness or ``` CRL.MC NO. 9679 OF 2023 ``` ``` 8 ``` otherwise of the allegations levelled in the FIR is a matter to be tested during the course of the investigation. It is made clear that this Court has not made any observations on the merit or otherwise of the allegations levelled in the FIR. The Criminal M.C. lacks merit. It stands dismissed. Sd/- **K.BABU, JUDGE** saap ``` CRL.MC NO. 9679 OF 2023 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 9679/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure-1 ``` ``` THE TRUE COPY OF THE CERTIFICATE FOR THE BEST VILLAGE OFFICER ISSUED TO THE 1ST PETITIONER DATED NIL ``` - `Annexure-2 THE CERTIFIED COPY OF THE FIR IN VC 3/2023, KASARGOD DATED 24.8.2023 ALONG WITH THE SAID COMPLAINT` - `Annexure-3 THE TRUE COPY OF THE LEGAL HEIR` - `CERTIFICATE OF THE DECEASED MOIDEEN DATED 23.3.2021 OBTAINED UNDER THE RTI ACT` - `Annexure-4 THE TRUE COPY OF THE RELEVANT RECORDS OBTAINED UNDER THE RTI ACT SHOWING THAT 2ND RESPONDENT HAS ALWAYS BEEN A DEFAULTER IN THE MATTER OF PAYING THE LUXURY TAX TO THE VILLAGE OFFICE` - `Annexure-5 THE TRUE COPY OF THE REPORT SUBMITTED BY THE 1ST PETITIONER TO THE TALUK OFFICE, HOSDURG OBTAINED UNDER THE RTI ACT DATED 6.11.2023` - `Annexure-6 THE CERTIFIED COPY OF THE REMAND REPORT DATED 24.8.2023 IN VC 3/2023, KASARGOD` - `Annexure-7 THE CERTIFIED COPY OF THE SEIZURE CUM ENTRUSTMENT MAHAZAR DATED 24.8.2023 IN VC 3/2023, KASARGOD` ``` Annexure-8THE CERTIFIED COPY OF THE RECOVERY MAHAZAR DATED 24.8.2023 IN VC 3/2023, KASARGOD Annexure-9THE TRUE COPY OF THE RELEVANT PAGES OF THE 'THANDAPER KANAKKU' ISSUED UNDER THE RTI ACT ``` //True copy //PA to Judge.