Baby M. Marar v. State of Kerala and Toy Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936** ## **Crl.MC.No. 416 of 2011 ( )** **--------------------------AGAINST THE ORDER/JUDGMENT IN CC 206/2010 of J.M.F.C.-I,KANJIRAPPALLY** ## **PETITIONER(S):** **--------------------------** **BABY M.MARAR, S/O.NARAYANA PANICKER, PERUKUNNEL HOUSE, CHIRAKADAVU, PONKUNNAM P.O., KOTTAYAM.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT(S):** **----------------------------** **1. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. TOY MATHEW, S/O MATHAI, PADINJARE KALAYIL HOUSE, PAMPADY P.O., KOTTAYAM-686 521.** **R1 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH. R2 BY ADV. SRI.RAJIT** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **2** ## **Crl.MC.No. 416 of 2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE I: COPY OF THE FIR IN CRIME 59/2007 OF PALLIKKATHODU POLICE STATION.** **ANNEXURE II: COPY OF THE FIS. ANNEXURE III: COPY OF HTE SCENE MAHAZAR. ANNEXURE IV: COPY OF THE CHARGE. ANNEXURE V: COPY OF THE ROUGH SKETCH BASED ON THE SCENE MAHAZAR.** **ANNEXURE VI: COPY OF THE CLAIM PETITION IN OP(MV)NO.979/2007. ANNEXURE VII: COPY OF THE CLAIM PETITION IN OP(MV)NO.993/2007. ANNEXURE VIII: COPY OF THE COMPLAINT.** ## **RESPONDENTS ANNEXURES: NIL** **/TRUE COPY/** **P.A. TO JUDGE** ## **VPV** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.416 of 2011 ---------------------------------------------Dated this the 4[th] day of April, 2014 ## **ORDER** This petition is filed u/s.482 of Cr.P.C. to quash Annexure-VIII complaint pending before Judicial First Class Magistrate Court-I, Kanjirappally for offence punishable u/s.279, 337, 338, 304A IPC by invoking the inherent jurisdiction. Based upon Annexure VIII complaint, the Magistrate took cognizance and numbered the case as C.C.No.206/2010. The petitioner is a witness in Crime No.59/2007 of Pallikkathodu Police Station, which was registered u/s.279, 337, 338 and 304A IPC and pending as C.C.No.320/2007 on the file of Judicial First Class Magistrate Court, Kanjirappally, against the 2[nd] respondent. The petitioner contended that on 18.3.07 at 3.30 pm an accident was occurred at Elapunkal bhagam, K.K. Road and Crl.M.C.No.416/11 2 after investigation Pallikkathodu Police laid a charge in the trial Court. While trial was going on, the 2[nd] respondent filed a complaint after three years of the same incident against the petitioner. In the circumstances, the petitioner approached this Court with this petition. 2. The allegation of the 2[nd] respondent is that on 18.3.2007 while he was driving a vehicle bearing Registration No.KL-5T 9929 from Mundakkayam to Pambadi through N.H.220, about 2.45 p.m., at Elapunkal junction, another vehicle bearing Registration No.PY 01 H 578 came from the opposite direction in a rash and negligent manner and hit against his vehicle, as a result, passengers inside the vehicle KL-5T 9929 sustained injuries and his father, who was sitting in the front side of the car succumbed to the injuries while undergoing treatment in the hospital. On the basis of information, Pallikkathodu police registered Crime No.59/2007 and after investigation, the charge was laid before Judicial First 3 Crl.M.C.No.416/11 Class Magistrate Court, Kanjirappally. 3. Now the case is pending in that Court as C.C.No.320/2007. The petitioner contended that the accident was occurred due to the negligent and rash driving of the offending vehicle. He further contended that the driver of the offending vehicle was also included as an accused in the above crime. When summons was issued and the case came up for trial, it is found that he is cited only as CW2 in C.C.No.320/2007. He contended that there is contributory negligence on the part of the petitioner in driving the vehicle. The police officers, who investigated the case, ignored those facts and charge sheeted the 2[nd] respondent alone. Hence, he filed a new case as C.C.No.206/2010. Aggrieved by that, the petitioner approached this Court with this petition. 4. The learned counsel appearing for the petitioner contended that there is inordinate delay in filing the second complaint against the petitioner. The incident was Crl.M.C.No.416/11 4 occurred on 18.3.2007, Pallikkathodu police registered Crime No.59/2007 on 19.3.2007 and the complaint was filed in the Court only on 14.1.2010. The reason for the delay was not properly explained by the 2[nd] respondent in C.C.No.206/2010. Moreover, witnesses were examined. The trial is at the fag end. The 2[nd] respondent is the sole accused in the above case. The vehicle was plying from east to west. The incident was occurred on the northern tar end, which is 5.26 metres north from southern tar end. The vehicle was in the wrong side of the road. If that be the position, the second complaint is a mere abuse of process of the Court. 5. The learned Public Prosecutor appearing for the 1[st] respondent admitted the delay in filing Annexure-VIII complaint. He also submitted that the police conducted a detailed investigation and after investigation filed Annexure-IV final report. He has no objection in quashing Annexure-VIII. Crl.M.C.No.416/11 5 6. The inherent jurisdiction u/s.482 Cr.P.C. can be invoked to prevent abuse of process of any court or otherwise to secure the ends of justice. While exercising inherent jurisdiction for the ends of justice which is at an interlocutory stage has to consider the circumstances under which the petition was preferred. Apex Court in _**State of Haryana** v_ . _**Bhajanlal**_ , the Supreme Court pointed out that: [1992 SCC (Crl) 426] “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations 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 Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for Crl.M.C.No.416/11 6 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 accuse with a view to spite him due to private and personal vengeance. From the submission made by the petitioner, I have perused Annexure-III mahazar. The 2[nd] respondent was charge sheeted in Annexure-IV. The reason for the delay is not properly explained. In Annexures-VI and VIII are the petitions filed before MACT, Kottayam for getting compensation. The 2[nd] respondent's wife and the mother are the claimants in the above petition. It was pleaded by them in Annexures-VI and VII that the incident was only due to the rash and negligent driving by the 2[nd] respondent. The petition was filed in the year 2007 probably, while filing such petition, it is the duty of the 2[nd] respondent to enquire about the police charge and other details prepared by the Pallikkathodu police, which were also produced before MACT, Kottayam. He was arrayed as the 1[st] respondent in O.P.M.V.Nos.979/2007 and Crl.M.C.No.416/11 7 993/2007. Annexure-IV charge shows that the accident was occurred due to the rash and negligent driving of the 2[nd] respondent in this petition. If that be the position, what instigated him to prefer Annexure-VIII is not known. While considering this petition, a report was called from the Judicial First Class Magistrate Court-I, Kanjirappally in C.C.No.320/2007, in which it is admitted that Pws1 to 12 were examined and Exts.P1 to P9 were marked. When the case was posted for final hearing, the learned Magistrate informed the Court that C.C.No.206/2010 is pending, which was stayed by this Court. If that be the position, no circumstances are brought before this Court to show that the petitioner in this case was also rash and negligent for the incident occurred on 18.3.2007. Therefore, the prosecution of C.C.No.206/2010 is a mere abuse of process of Court, which is to be quashed by invoking the inherent jurisdiction. 7. Hence, I quash Annexure-VIII complaint pending Crl.M.C.No.416/11 8 before Judicial First Class Magistrate Court-1, Kozhikode by invoking the inherent jurisdiction. Crl.M.C. is allowed. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.416/11 9