Bindu S.M. v. Anil Kumar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 30TH DAY OF JANUARY 2014/10TH MAGHA, 1935 Crl.MC.No. 360 of 2011 ( ) ---------------------------------- AGAINST THE JUDGMENT IN CC 409/2010 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-I, TRIVANDRUM PETITIONERS/2ND ACCUSED: ----------------------------------------- BINDU S.M., W/O.RAVINDRANATH, AGED 38 YEARS, JUNIOR CLERK, VELLANADU SERVICE CO-OPERATIVE BANK LTD., TRIVANDRUM RESIDING AT "PRANAVAM", PALLITHARA, VELLANADU P.O., TRIVANDRUM. BY ADVS.SRI.M.R.HARIRAJ SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.NIRMAL V NAIR SRI.K.RAJAGOPAL ## RESPONDENTS/COMPLAINANT : ------------------------------------------- ## 1. ANIL KUMAR, S/O.VELAYUDHAN ASARI, JUNIOR CLERK, VELLANADU SERVICE CO-OPERATIVE BANK LTD., TRIVANDRUM - 695543, RESIDING AT PANNICHIRAKUZHIVEETTIL, URIAKODE, PERUNKULAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.SERGI JOSEPH THOMAS R2 BY PUBLIC PROSECUTOR SMT. M.T.SHEEBA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 360 of 2011 ( ) ---------------------------------- ## APPENDIX PETITIONER’S ANNEXURES : - A1 COPY OF THE COMPLAINT DATED 19.10.2009. - A2 COPY OF THE JUDGMENT DATED 23.02.2010 IN W.P(C)1388/2010 ON THE FILE OF THIS HONOURABLE COURT. - A3 COPY OF THE SUMMONS DATED 23.09.2010. - A4 COPY OF THE ENQUIRY REPORT DATED 28.05.2010. - A5 COPY OF THE ORDER NO.352/2011-12 DATED 10.10.2011 OF THE DISCIPLINARY SUB COMMITTEE OF THE BANK. RESPONDENTS’ ANNEXURES : NIL // True Copy // P.A. To Judge DSV/30/01 ## P.D.RAJAN, J. --------------------------------------Crl.M.C.No. 360 OF 2011 ----------------------------------------Dated this the 30[th] day of January, 2014 ## O R D E R This Crl.M.C.360 of 2011 is filed under Section 482 of the Code of Criminal Procedure to quash Annexure A1 complaint in C.C.No.409 of 2010 of the Judicial First Class Magistrate's Court-I, Thiruvananthapuram. The petitioner is the 2[nd] accused in the above case, which was filed under Sections 499 and 500 read with Section 34 IPC. The 1[st] respondent in this petition is the defacto complainant in the above case. 2. The petitioner and the 1[st] respondent are working as employees of Vellanadu Service Co-operative Bank, while working so, the 1[st] respondent behaved indecently and attempted to sexually abuse by using indecent words. In the circumstance, she filed a complaint against the 1[st] respondent to her higher authority, in which the Bank authorities conducted a detailed enquiry and took disciplinary action against him. After this, the 1[st] respondent filed Annexure A1 complaint before the Judicial Crl.M.C.No. 360 OF 2011 2 First Class Magistrate's Court-I, Thiruvananthapuram, in which the petitioner received Annexure A3 summons. She contended that the allegation against her in Annexure A1 is false and without lawful authority and it is to be quashed immediately. In such a circumstance, she filed this petition. 3. Heard both sides. The learned counsel appearing for the petitioner contended that there is no bona fides in Annexure A1 and it was filed only to harass her at the work place. The above complaint was filed only to retaliate her against the complaint filed by her before the Bank authorities. Prima facie case is not made out in Annexure A1 complaint to constitute an offence under Section 499 of the IPC. She is entitled to get protection as per the decision of the Supreme Court in Vishaka v. State of Rajasthan [AIR 1990 SC 3011]. She also relied on decisions in State of Haryana v. Bhajan Lal [AIR 1992 SC 604] and in Rajendra Kumar Sitaram Pande and Others v. Uttam and Another Crl.M.C.No. 360 OF 2011 3 [(1999) 3 Supreme Court Case 134] and contended that she is entitled to get Eight Exception to Section 499 of the IPC. The report of the complaint made to the Bank authorities does not disclose any defamatory matter against the 1[st] respondent and interference at this stage is very essential. 4. The learned counsel appearing for the 1[st] respondent strongly opposed the above argument and contended that he is not challenging the facts stated in the domestic enquiry. The petitioner in this case is not examined as witness in the domestic enquiry and he is not challenging that aspect. In paragarphs 6 and 7 of Annexure A1, the petitioner made the defamatory allegation against him and published in the locality where he is residing. The allegation made in paragraphs 6 and 7 per se defamatory and a detailed enquiry is necessary in that aspect. The 1[st] respondent disclosed all evidence before the Judicial First Class Magistrate’s Court-I, Thiruvananthapuram and prima Crl.M.C.No. 360 OF 2011 4 facie case is made out and if any interference is made at this stage, it will affect the prosecution case. 5. Now the question that arises for consideration is whether exercising Section 482 of the Code of Criminal Procedure, the court is bound to examine whether such orders may be necessary to “give effect to any order” under this code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. It is the admitted case that the petitioner and the 1[st] respondent are employees of Vellanadu Service Co-operative Bank. The petitioner filed a complaint before the Bank authorities when the 1[st] respondent tried to misbehave towards her. For that an enquiry was conducted by the Bank authorities. Annexure A4 is the enquiry report submitted by the Enquiry Officer. Proceedings adopted by the Enquiry Officer was specifically mentioned in Annexure A4 and finally the Enquiry Officer reached a conclusion that the 1[st] respondent was guilty of all Crl.M.C.No. 360 OF 2011 5 but on one charge and with those observations, the report along with the connected papers were returned to the management. Based upon which, the disciplinary action was taken against the 1[st] respondent. The allegations in paragraphs 6 and 7 are mentioned in Annexure A1, which was published by this petitioner in and around the locality is the allegation of the 1[st] respondent. 6. The learned counsel appearing for the 1[st] respondent submitted that the 1[st] respondent and a few witnesses were examined in the trial court and cognizance was taken by the learned Magistrate. The evidence adduced by the 1[st] respondent has made out a prima facie case against the petitioner and the others. If that be the position whether the petitioner is entitled to get protection of Eight Exception to Section 499 of the IPC is a fact of evidence. The learned counsel appearing for the petitioner relied on paragraph 7 of the decision reported in (1999) 3 Supreme Crl.M.C.No. 360 OF 2011 6 Court Case 134. But the allegations in Annexure A1 are different with regard to above decision. Since prima facie case is made out, whether the petitioner is entitled to get the benefit of Eight Exception to Section 499 of the IPC is the matter of evidence. The allegations made before the Enquiry Officer was not challenged in Annexure A1 but she affixed the charge memo in public place at different places in that area and that is the allegation. 7. The inherent powers of the High Court contemplated u/s 482 Cr.P.C has to be exercised only for the three purposes mentioned in the section. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned in the section. Inherent jurisdiction to make such orders necessary to “give effect to any order” under this Crl.M.C.No. 360 OF 2011 7 code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. Apex Court in Talab Haji Hussain V. Madhukar Purushotham Mondker (AIR 1958 SC 376) held that the inherent power contemplated under Section 482 Cr.P.C has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the test specifically laid down in the section itself. Hence the facts and circumstances show this is not a fit case to invoke jurisdiction under Section 482 of the Code of Criminal Procedure, therefore, I find no merit in the application and accordingly, this Crl.M.C. is dismissed. Sd/- P.D.RAJAN (JUDGE). DSV/30/01 Crl.M.C.No. 360 OF 2011 8