CICILY SUNNY, JOSEPH GEORGE, GEETHA VARGHESE v. STATE OF KERALA & MARY BENJAMIN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938** **Crl.MC.No. 3495 of 2013 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 708/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, ERNAKULAM CRIME NO. 1360/2006 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM** **PETITIONER(S)/ACCUSED NOS 3,4 AND 6:** **-----------------------------------** **1. CICILY SUNNY,AGED 53** - **W/O M.P JOHN, MANJANAMKUZHIYIL HOUSE, VENNALA P.O, ERNAKULAM** **2. JOSEPH GEORGE,AGED 73** **PARAMBITHARA CROSS ROAD, PANAMPILLY NAGAR, KOCHI 36** **3. GEETHA VARGHESE,AGED 61** - **W/O DR. E. VARGHESE, 43/2254, EDUMANATHURUTHIL, TEMPLE ROAD, KADAVANTHRA, KOCHI 20** **BY ADVS.SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER SRI.JOLLY GEORGE** ## **RESPONDENT(S)/RESPONDENTS/ STATE & DEFACTO COMPLAINANT:** **-------------------------------------------------------** ## **1. STATE OF KERALA,** - **(REPRESENTED BY THE SUB INSPECTOR OF POLICE, ERNAKULAM CENTRAL POLICE STATION CRIME NO 1360/2006) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. MARY BENJAMIN,AGED 55** - **W/O BENJAMIN, POTTAS HOUSE,KANIYAMPUZHA ROAD, EROOR P.O, NADAMA VILLAGE, ERNAKULAM DISTRICT 682306** **R2 BY ADV. SRI.GEO PAUL R2 BY ADV. SRI.SANU MATHEW R1 BY ADV.MAYA.M.N PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.1.2017, THE COURT ON 1.3.2017 PASSED THE FOLLOWING:** ## **Crl.MC.No. 3495 of 2013 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO 1360/2006 OF CENTRAL POLICE STATION, ERNAKULAM** **ANNEXURE A2 A TRUE COPY OF THE FI STATEMENT IN CRIME NO 1360/2006 OF THE CENTRAL POLICE STATION, ERNAKULAM** **ANNEXURE A3 TRUE COPY OF THE CHARGE SHEET DATED 18-11-2006** **ANNEXURE A4 A TRUE COPY OF THE ACCIDENT REGISTER- CUM- WOUND CERTIFICATE DATED 15-10-2006** **ANNEXURE A5 A TRUE COPY OF THE KALPANA NO 16 OF 2006 DATED 11-03-2006 BY THE METROPOLITAN OF KOCHI DIOCESE** **ANNEXURE A6 A TRUE COPY OF THE KALPANA DATED 08-06-2006 WITH NO 49/2006** **ANNEXURE A7 A TRUE COPY OF THE INJUNCTION ORDER IN IA NO 3986/2006 IN OS NO 515/2006 OF MUNSIFF COURT, ERNAKULAM** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **TRUE COPY** **SKS** **P.A. TO JUDGE** ## **A.M.BABU, J.** -----------------------------CRL.M.C.NO. 3495 OF 2013 -----------------------------Dated 1[st] March, 2017 ## **ORDER** Petitioners seek to quash a charge-sheet laid against them. They seek relief under Sec.482 of the Cr.P.C. 2. Petitioners are accused 3, 4, and 6 in CC 708/2006 pending before the Judicial Magistrate-II, First Class, Ernakulam. They allegedly committed offences punishable under Secs 143, 147, 294(b), 323, 324, 354 and 506 of the IPC read with IPC 34. 3. The second respondent is the first informant. AnnexA2 is the FI statement given by her. Annex-A1 is the FIR. AnnexA3 is the charge-sheet. The same is sought to be quashed. 4. The prosecution case is that on 15.10.2006 the accused persons abused the second respondent using filthy words and they physically assaulted her. The petitioners contend that a false case has been charged against them. 5. Heard the learned counsel for the petitioners, the learned counsel for the second respondent and the learned Public Prosecutor. 2 CRL.M.C.NO. 3495 OF 2013 6. It appears that there are disputes between St.Gregorios Orthodox Syrian Church, Elamkulam and St.Mary's Orthodox Cathedral, Ernakulam. The disputes seem to be in respect of certain properties at Elamkulam. The petitioners support St.Gregorios Orthodox Syrian Church. The second respondent supports St.Mary's Orthodox Cathedral. It is said that she is the lawyer who appears for St.Mary's Orthodox Cathedral in courts. The Mar Gregorius chapel at Elamkulam appears to be one of the disputed properties. The incident alleged against the petitioners allegedly occurred in the compound of the said chapel. 7. The petitioners contend that the allegations in annexA3 final report do not prima facie constitute any offence, much less the offences alleged against them. The said contention should be readily rejected. For, specific overt acts are alleged in annex-A3 against the accused persons including the petitioners. The allegations in annex-A3 against the petitioners are these: (i) the first petitioner (third accused) fisted the second respondent on her belly, (ii) the second petitioner (fourth accused) caught hold on the hand of the second respondent, kept her hand under his arm and pulled her in order to oust her from the compound 3 CRL.M.C.NO. 3495 OF 2013 and (iii) the third petitioner (sixth accused) slapped the second respondent on her face to cause her hurt. The overt acts of the other accused persons are also specifically alleged in annex-A3. You find such allegations stated in annex-A2 FI statement also. The allegations may be true or false, but there are allegations in annex-A3 against each accused. The truth or otherwise of the allegations is a matter for consideration at the trial and not now. The allegations in annex-A3 charge-sheet against the accused persons are sufficient to take cognizance against them. The learned magistrate had rightly taken cognizance of. The contention of the petitioners that the allegations in the final report do not prima facie constitute any offence is liable to be rejected. 8. Another contention in the memorandum of Crl.M.C is that the second respondent in her FI statement suppressed the order of injunction issued by the civil court. Annex-A7 is a copy of the injunction order meant to be served on the defendants in that suit. One of the defendants was the second respondent herself. She did not refer to the order of injunction in her annexA2 FI statement. But that does not amount to suppression of any material fact. The FI statement was given by the second 4 CRL.M.C.NO. 3495 OF 2013 respondent to complain about the alleged abuse and attack on her. It was not necessary for her to narrate in the FI statement the whole story relating to the civil disputes between her side and the opposite side. In annex-A7 order her entry into any premises is not restrained. What is restrained is the causing of any obstruction to any vicar from discharging religious duties. There is no whisper in the memorandum of the petitioners that the second respondent did anything to obstruct any vicar from discharging any religious or other duty. I do not consider that there was suppression of any fact in the FI statement, much less a material fact. 9. What are highlighted more in the memorandum are a few discrepancies. The time of the incident shown in annex-A1 FIR is 10.00 a.m, but it is 12.15 p.m in annex-A3 final report. The sub-inspector of police who has registered the FIR states therein that during his law and order patrol duty on 15.10.2006 he received an information at 10.30 a.m that a lady was being assaulted in the compound of the chapel. It is also stated therein that the sub-inspector immediately proceeded to the spot. But the time of recording annex-A2 FI statement as shown therein is 5 CRL.M.C.NO. 3495 OF 2013 1.30 pm. These discrepancies have been highlighted by the petitioners. According to them, the case charged against them is not genuine. 10. It is impossible to jump into such a conclusion. The prosecution is entitled to explain the discrepancies at the trial. Any irregularity in the investigation by itself cannot be considered fatal to the prosecution case. The Supreme Court holds that investigation is not the solitary area for judicial scrutiny in a criminal trial and that the conclusion of the court cannot be allowed to depend solely on the probity of investigation. It is also held that even if the investigation is illegal or even suspicious, the rest of evidence must be scrutinized independently of the impact of it. The decision is **State of Karnataka vs. Yarappa Reddy (AIR 2000 SC 185).** The discrepancies mentioned above are no ground to quash a criminal prosecution. 11. The sub-inspector states in the FIR that he sent the second respondent to the general hospital. In annex-A4 accident register cum wound certificate the time of examination of the second respondent shown is 5.35 p.m. It is alleged in the memorandum that the distance to the said hospital from the 6 CRL.M.C.NO. 3495 OF 2013 place of occurrence is just 2 kms. The time of the incident originally shown in annex-A4 as 10.00 a.m is seen corrected as 11.00 a.m. The above are also not matters to be considered in this proceedings and are not sufficient to quash a charge-sheet. These are matters for the Magistrate to consider to dispose of the case. 12. I may conclude. I do not see any good ground to quash annex-A3 charge-sheet. The discrepancies on time pointed out by the petitioners, and considered at paragraph 9 of this order, may even suggest that the police officers concerned were either inefficient or that they showed different time on different papers purposefully to spoil the case. It is a matter for their higher authorities to inquire into. Let the district police chief decide whether he should hold an inquiry in the matter. The Crl.M.C is liable to be dismissed. Dismissed. sks/23.2.2017 **A.M.BABU Judge** 7 CRL.M.C.NO. 3495 OF 2013 8 CRL.M.C.NO. 3495 OF 2013