Basil Thampi v. Jose and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936 Crl.MC.No. 677 of 2013 () --------------------------------- AGAINST THE ORDER/JUDGMENT IN CMP 206/2009 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, KOLENCHERRY PETITIONER(S)/2ND ACCUSED : --------------------------------------------- BASIL THAMPI, AGED 20 YEARS, S/O.THAMPI, PATHIRAKKATHU HOUSE, EZHIPPURAM BHAGOM, MAZHUVANNOOR, ERNAKULAM DIST. BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.P.MARTIN JOSE RESPONDENT(S)/COMPLAINANT : --------------------------------------------------- 1. JOSE, S/O.VARGHESE, KAVIKKUNNEL HOUSE, NELLADU, MAZHUVANNOOR, ERNAKULAM DIST-686 689. 2. THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.JOSEKUTTY MATHEW R2 BY PUBLIC PROSECUTOR SRI. N.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 677 of 2013 () APPENDIX PETITIONER’S ANNEXURES : ANNEX.A:COPY OF THE FINAL REPORT IN CRIME NO 323 OF 2008 OF KUNNATHUNADU POLICE STATION. ANNEX.B:COPY OF FIR IN CRIME NO 243 OF 2008 OF KUNNATHUNADU POLICE STATION. ANNEX.C:COPY OF CMP NO 206 OF 2009 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE’S COURT, KOLENCHERRY IN CC NO 705 OF 2008. ANNEX.D:COPY OF ORDER IN CMP NO 206 OF 2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE’S COURT, KOLENCHERRY. ANNEX.E:COPY OF ORDER IN CRL.R.P. NO 56 OF 2009 OF THE SESSIONS COURT, ERNAKULAM DTD 15/10/2012. ANNEX.F:COPY OF FINAL REPORT IN CRIME NO.243 OF 2008 OF KUNNATHUNADU POLICE STATION. ANNEX.G:COPY OF WOUND AND DISCHARGE CERTIFICATES IN C.C.NO.705/2008 WHICH ARE 7 IN NUMBERS. RESPONDENTS' ANNEXURES : NIL // True Copy // P.A. To Judge DSV/24/04 ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.677 of 2013 ---------------------------------------------Dated this the 9[th] day of April, 2014 ## **ORDER** This is a petition filed under Section 482 Cr.P.C to quash Annexure C and Annexure D orders in CMP No. 206/2009 on the file of the Judicial First class Magistrate Court, Kolencherry. Petitioner is the 2[nd] accused in the above case which was filed under Sections 143, 147, 148, 459, 323, 324 , 307, 427, 506 (ii) r/w Section 149 IPC. The learned Magistrate took cognizance of the offence and issued process against the 8 persons. Now it is taking on file as C.P.No.6/2009. Actually, no offence under section 459 IPC was properly alleged in this case. More over, for the same sets of facts, crime No.243/08 was registered by the Kunnathunadu Police under Sections 143, 147, 148, 322, 326, 427, 506(ii), 120 B read with Section 149 IPC against Crl.M.C.No.677/13 2 seven persons and after investigation laid charge before the Judicial First Class Magistrate Court, Kolenchery. That case is now pending in the above court as C.C.No. 705/2008 and no offence under Section 459 committed was revealed in the investigation and hence filing a complaint for the same set of facts alleging serious offence is only to harass the petitioner and other accused. Hence, the petitioner has approached this Court. The above CMP 206/2009 was filed by the first respondent before the Judicial First Class Magistrate Court I, Kolenchery. The allegation was that on 21.4.2008 at 11 p.m, the accused came in two vehicles in front of the house of the defacto complainant. They formed themselves unlawful assembly carrying deadly weapons like cricket bat, iron rode and sword stick and thereafter damaged window fans. The lock of the door was broken and tampered. Thereafter assaulted the defacto complainant, his mother, father and others inside the Crl.M.C.No.677/13 3 house. As a result, they sustained serious injuries. Immediately, they were taken to hospital. On the basis of the information, the Kunnathunadu Police registered a case and after investigation, they laid charge. But they excluded the 2[nd] accused/petitioner and offence under Section 459 IPC. In the circumstance, the defacto complainant filed CMP 206/09 which is pending before the Judicial First Class Magistrate Court, Kolenchery and it was taken as CP6/2009 which is pending in tha court for committal. In the circumstance, petitioner preferred Annexure A petition. It was also dismissed by the learned Sessions Judge and hence, the petitioner has approached this Court. 2. The learned counsel appearing for the petitioner contended that no offence under Section 459 IPC was committed by the accused. Petitioner was not present there on the date of incident, since he was an Engineering student. Cognizance of offence punishable under Section Crl.M.C.No.677/13 4 143, 147, 148, 323, 353, 342, 452, 427, 406 read with 149 IPC was taken and learned Magistrate is proceeding with the trial of C.C.No. 705/08. Therefore adding Section 459, the Magistrate cannot take fresh cognizance for the same set of crimes, it is contended. Therefore, on adding a new Section 459 by the petitioner in CMP No. 6/2009, cognizance was taken for the second time and that the case was ready for committal and numbered as C.P.6/09. 3. The learned counsel appearing for the petitioner further contended that prima facie case is not made out against the petitioner to attract Section 459. Therefore, cognizance of the offence itself is illegal. If that be so, the committal proceedings initiated in C.P.No.9/2009 is to be quashed. 4. The learned Public Prosecutor and the learned counsel appearing for the 1[st] respondent strongly opposed the above contention and contended that prima facie case Crl.M.C.No.677/13 5 was proved against the petitioner and six witnesses were examined in the above C.P. Hence, no interference is necessary in this petition. 5. Now the question that arises for consideration is whether this is a a fit case to invoke the inherent jurisdiction. According to Section 482 Cr.P.C., the inherent power can be invoked in a case to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be used suo motu in exercise of interest of justice. This inherent power can be exercised in respect of substantive rights as well as in procedural matters. Here, allegation of the 1[st] respondent in the trial Court was that accused trespassed into his house in the night and while committing house breaking caused grievous hurt to the inmates and they attempted to kill him. Immediately after the incident, the injured were admitted in the Medical College, Kolencherry. 6. I have perused the wound certificate of the 6 Crl.M.C.No.677/13 defacto complainant. He sustained only generalized body pain. One Yohannan sustained multiple abrasion on the left hand and wrist. Annamma sustained contusion right shoulder and neck. Aji sustained multiple abrasion both leg and dorsum feet, abraded contusion left thigh and lacerated would 3 cm right posterior forearm. Thampi sustained abrasion right ear hole, both legs dorsum right foot and back of right chest and lacerated would 2 cm left knee. Joy sustained multiple abrasion right occipital and neck dorsum left hand and lateral aspect left thigh and contusion right forearm. The X-ray result of Thampi shows fracture base of 4[th] metacarpal right. The allegation in Annexure-C complaint was that the accused in the case used iron rode, sword stick and cricket bat for assaulting the injured. Even though such allegation is made, the corresponding injury is not found in the wound certificate. If that be the position, prima facie case attracting Section 459 is not found in the medical evidence. Since serious Crl.M.C.No.677/13 7 offence is alleged against the accused in the above C.P., the defacto complainant is bound to convince the court that while attempting to commit house breaking, they sustained grievous injuries or attempted to kill him and his family members. In the absence of such averment in Annexure-C and corresponding wound certificate, prima facie test of taking cognizance is failed and therefore, this is a fit case to invoke the inherent jurisdiction u/s.482 Cr.P.C. Apex Court in _**State of Haryana** v_ . _**Bhajanlal**_ , [1992 SCC (Crl) 426] held as follows: “(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 Crl.M.C.No.677/13 8 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 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. Therefore, analysing the facts and circumstances of this case, I quash Annexure-C complaint and Annexure-D committal order in C.M.P.No.206/2009 of Judicial First Class Magistrate Court, Kolencherry. Crl.M.C. is allowed. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.677/13 9 Crl.M.C.No.677/13 10