Common Order in Crl.M.C Nos.4605 of 2015 & 6910 of 2015 (V. Syna Rani and Deepa Haridas v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942** ## **Crl.MC.No.4605 OF 2015(F)** **AGAINST THE ORDER/JUDGMENT IN ST 1594/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VARKALA** **CMP NO.9115/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VARKALA** ## **PETITIONER/4TH ACCUSED:** **V. SYNA RANI, AGED 49 YEARS, D/O. REMANI, CHITHRALAYAM, T.C.24/1923, THYCAUD P.O.,THIRUVANANTHAPURAM -695 014.** **BY ADVS. SRI.K.K.VIJAYAN SMT.MINI GANGADHARAN** ## **RESPONDENT/COMPLAINANT & STATE:** **1 THE STATE OF KERALA REPRESENTED BY THE STATE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 DR. ANEESH APSARA, NEAR TOWN HALL, ATTINGAL P.O, ATTINGAL,CHIRAYINKIL TALUK. 695 101.** **R1-2 BY ADV. SMT.K.AMMINIKUTTY R1 BY ADV. SRI.N.RAGHURAJ** ## **OTHER PRESENT:** ## **SRI.C.S.BREEZE, SR.P.P** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.02.2021 ALONG WITH Crl.MC.6910/2015(E), THE COURT ON 12.02.2021 PASSED THE FOLLOWING:** **Crl.MC.No.4605 & 6910 OF 2015 2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942** ## **Crl.MC.No.6910 OF 2015** **AGAINST THE ORDER/JUDGMENT IN ST 1594/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA** ## **PETITIONER/3RD ACCSUED:** **DEEPA HARIDAS AGED 44 YEARS, D/O. HARIDAS, T.C.28/2348, UPASANA, NEAR CHETTIKULANGARA TEMPLE G. P.O. THIRUVANANTHAPURAM 695 009** **BY ADVS. SRI.K.K.VIJAYAN SRI. KUMBAZHA K.R.RAJESH KUMAR SRI. PONNI J SMT.MINI GANGADHARAN SRI.N.C.SAJUNAM** ## **RESPONDENT/COMPLAINANT & STATE:** > 1 **STATE OF KERALA REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** 2. **DR. ANEESH, APSARA, NEAR TOWN HALL, ATTINGAL P.O., ATTINGAL, CHIRAYINKIL TALUK 695 101** **R1 BY ADV. SMT.K.AMMINIKUTTY R1 BY ADV. SRI.N.RAGHURAJ** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.02.2021, ALONG WITH Crl.MC.4605/2015(F), THE COURT ON 12.02.2021 PASSED THE FOLLOWING:** **Crl.MC.No.4605 & 6910 OF 2015 3** ## **M.R.ANITHA, J.** **--------------------------------Crl.M.C.Nos.4605 & 6910 of 2015 --------------------------------Dated this the 12[th] day of February, 2021** ## **COMMON ORDER** These petitions were filed by the 3[rd] and 4[th] accused in S.T.No.1594/2015 on the file of Judicial First Class Magistrate Court-I, Varkkala. Petitioner in Crl.M.C.No.6910/2015 is the 3[rd] accused and petitioner in Crl.M.C.No.4605/2015 is the 4[th] accused in S.T.No.1594/2015 on the file of the Judicial First Class Magistrate Court-I, Varkkala. 2. Annexure AI is the complaint filed by the 2[nd] respondent alleging the commission of offence under Section 499 and 500 IPC against the accused persons. Prosecution case as alleged in Annexure-A1 complaint is that the accused persons who are prosecuting O.S.No.1131/2011 before the Principal Sub Court, Thiruvananthapuram spread abuses against the 2[nd] respondent/complainant and circulated the copies of the injunction application to the persons who were known to him with malafide intention to defame him. It is also alleged that 2[nd] respondent exploiting the physical infirmity of deceased one Mr. Purushothaman aided him in creating a sham document in ## **Crl.MC.No.4605 & 6910 OF 2015 4** the name of one Mrs.Asha Jose, who is the first defendant in O.S.No.1131/2011. It is also alleged that there is suspicion in the death of Purushothaman and the complainant/2[nd] respondent is having participation in that. The suit was one for declaration and other consequential reliefs to declare the deed executed by Purushothaman in favour of first defendant as void. 3. Second defendant in the suit is the 2[nd] respondent in this petition. Petitioner in Crl.M.C.No.6910/2015 is the third plaintiff and petitioner in Crl.M.C.No. 4605/2015 is the 6[th] plaintiff in the suit. The petitioner in Crl.M.C.6910/2015 is a close relative of the 2[nd] respondent. Both are children of predeceased siblings of late Purushothaman. Accused 1 & 2 in the complaint are the first and second plaintiffs in the suit and the suit was dismissed on 30.05.2015 finding that the deed is valid. So according to the petitioners, Annexure AI complaint does not disclose any specific overt act and it is very vague and there is no averment of common intention to cause defamation to the complainant/2[nd] respondent. There is no averment of criminal conspiracy. The complaint is silent on what aspect the petitioners contributed for constituting an offence as alleged on the 2[nd] respondent. The notice sent by the petitioner prior to the ## **Crl.MC.No.4605 & 6910 OF 2015 5** filing of the complaint has been replied properly. So the intention of the 2[nd] respondent is only to wreck vengeance. Hence, the petitioners have approached this Court to quash Annexure AI compliant in S.T.No.1594/2015 on the file of Judicial First Class Magistrate Court-I, Varkkala as far as it is against the present petitioner s 3[rd] and 4[th] accused. 4. Notice was issued to the respondents. Learned counsel Sri. K.K. Vijayan appeared for the petitioners, Senior Public Prosecutor Sri.M.S. Breeze appeared on behalf of 1[st] respondentState. Second respondent appeared through Sri.N. Raghuraj. Since the relief sought in both petitions is to quash Annexure A1 complaint in S.T.No.1594/2015, both the cases were heard together. 5. According to the learned counsel for the petitioners, in Annexure AI complaint, the alleged defamatory imputations are not stated. It is also his contention that there is no allegation in the complaint that the alleged imputation has lowered the reputation of the complainant/2[nd] respondent and hence it will not come under Explanation 4 of Sec. 499 IPC. 6. Though the learned counsel for the petitioners would ## **Crl.MC.No.4605 & 6910 OF 2015 6** contend that Ext.A1 does not state about any defamatory imputation, in paragraph No.3 of Ext.A1 there is averment that accused persons are circulating the copies of the plaint and injunction application in O.S.No.1131/2011 alleging that the court has allowed the injunction application and thereby approved the allegations in the plaint and injunction petition. It is also alleged that accused have shown the copy of the plaint and injunction application to several friends and relations and read over to them and translated to them in Malayalam and repeated that court has approved all the allegations and also asked them to read the contents in the plaint and petition. It is further alleged that thereafter several people asked him whether he has influenced Purushothaman and got document forged on behalf of his sister and that it is heard that he has a role in the death of Purushothaman and thereby the complainant was defamed and put under desperation. 7. According to the learned counsel for the 2[nd] respondent, the averments in paragraph Nos.3 and 5 would point the commission of offence by the accused persons. In paragraph No.5 it has been alleged that after impleading one Thankamony who was the Manager of late Purushothaman, ## **Crl.MC.No.4605 & 6910 OF 2015 7** written statement was filed by him and thereafter again they started propagating the copies of the amended plaint and injunction petition to several friends and relations of the 2[nd] respondent/complainant. Accordingly, on 6.10.2014 at 3.30 p.m 4[th] accused and 7[th] accused went to the shop of the wife's uncle of the complainant, by name Ashokan and gave copy of the plaint and injunction petition too in front of the customers who are in acquaintance with the 2[nd] respondent/complainant and gave their explanations to the same to the persons present there. On the same day, the 3[rd] accused and 5[th] accused went to the Dental Clinic of Dr. Manoj Kumar who is a colleague of the 2[nd] respondent/complainant and in front of the patients who are known to the complainant/2[nd] respondent distributed the copy of the plaint and injunction petition and gave wrong explanation of the same to them. 8. The learned counsel for the 2[nd] respondent also would contend that the said Ashokan and Dr.Manoj Kumar have been cited as witnesses. Though the learned counsel for the petitioners would contend that the defamatory imputations are not stated in Annexure AI complaint paragraph No.3 of the complaint states about the creation of a fake document by the 2[nd] ## **Crl.MC.No.4605 & 6910 OF 2015 8** respondent/complainant on behalf of his sister on influencing Purushothaman and further it is alleged that people asked him as to whether he has any hand in the death of Sri.Purushothaman etc. would be defamatory prima facie if at all the document is a genuine document. So when people who heard the said allegation from the accused with respect to the 2[nd] respondent/ complainant and those people asked the 2[nd] respondent/ complainant about the imputation there would be materials prima facie to prove the allegation. Contention to the contra advanced by the petitioners does not hold good. 9. The learned counsel also seek in aid of Explanation 4 of Sec.499 IPC and content that there is no averment in the complaint that the imputation alleged has lowered the reputation of the 2[nd] respondent/complainant and hence the complaint is not prima facie sustainable. But in paragraph No.3 there is specific averment that several people asked the 2[nd] respondent/ complainant whether he had forged a document influencing Purushothaman on behalf of his sister and it is further stated that people told him that there is a saying that he has some role in the death of Purushothaman and it has been stated further that due to the said imputation he was defamed a lot and put ## **Crl.MC.No.4605 & 6910 OF 2015 9** under desperation. So there is prima facie material to show that due to imputation made, reputation of 2[nd] respondent/ complainant was lowered is there. 10. It is true that the learned counsel for the petitioners drew my attention to Rangku Dutta @ Ranjan Kumar Dutta v. State of Assam [2011 KHC 4518]. Paragraph No.18 of the said judgment was highlighted by the learned counsel. In para No.18 it has been stated that Section 20A(1) of Terrorist and Disruptive Activities (Prevention) Act, 1987 is a mandatory requirement of law since it starts with an overriding clause and, thereafter to emphasize its mandatory nature, it uses the expression “No” after the overriding clause. It is also stated that whenever the intent of a statute is mandatory, it is clothed with a negative command. G.P. Singh's Principles of Statutory Interpretation, 12[th] Edition at Pg.No.404, has been quoted which reads as follows: “As stated by CRAWFORD: “Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience. As observed by SUBBARAO, J.: “Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative”. S.80 and S.87 -B of the Code of Civil Procedure, 1908, S.77 of the Railways Act, 1890; S.15 of the Bombay Rent ## **Crl.MC.No.4605 & 6910 OF 2015 10** Act, 1947; S.213 of the Succession Act, 1925; S.5-A of the Prevention of Corruption Act, 1947; S.7 of the Stamp Act, 1899; S.108 of the Companies Act, 1956; S.20(1) of the Prevention of Food Adulteration Act, 1954; S.55 of the Wild Life Protection Act, 1972 the proviso to S.33(2)(b) of the Industrial Disputes Act, 1947 (as amended in 1956); S.10A of Medical Council Act, 1956 (as amended in 1993), and similar other provisions have therefore, been construed as mandatory. A provision requiring 'not less than three months' notice is also for the same reason mandatory.” We are in respectful agreement with the aforesaid statement of law by the learned author.” 11. As pointed out earlier, the above decision was quoted by the learned counsel to emphasis the scope of Explanation 4 of Section 499 IPC. But I have already found that when there is specific averment in the complaint that the act of the accused in circulating and propagating that complainant/2[nd] respondent forged document on behalf of his sister and he has got a role in the death of Purushothaman etc. that would amount to be defamatory, prima facie and there is also specific averment by the complainant/2[nd] respondent in paragraph No.3 that the said allegations have defamed him and put him in mental agony. So it cannot be said prima facie that there is no averment in the complaint about the lowering of reputation of the 2[nd] respondent/ complainant in Annexure AI complaint. 12. It is well settled that the inherent powers vested with ## **Crl.MC.No.4605 & 6910 OF 2015 11** this Court under Section 482 Cr.P.C can be exercised only sparingly with caution to prevent an abuse of process of court or otherwise for the ends of justice. In this context, I may refer to the decision in **State of Bihar v. Murad Ali Khan and Ors.** [AIR 1989 SC 1 : 1988 **KHC 1071]** . Paragraph No.6 of the said judgment is relevant in this context to be extracted and it reads as follows: “6. The second ground takes into consideration the merits of the matter. It cannot be said that the complainant does not spell out the ingredients of the offence alleged. A complaint only means any allegation made orally or in writing to a Magistrate, with a view to his taking action, that some person, whether known or unknown, has committed an offence. It is trite that jurisdiction under S.482, Cr.P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complainant are likely to be established by evidence or not . That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not.” Municipal Corporation of Delhi v. R.K. Rohtagi [1983 KHC 404 para 10:(1983) 1 SCR 884 : AIR 1983 SC 67 at page No.70], is ## **Crl.MC.No.4605 & 6910 OF 2015 12** ## also relevant to be quoted, which reads as follows: “It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complainant or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under S.482 of the present Code.” 13. In this case, the complaint – Annexure AI cannot be said as an abuse of process of law. It cannot also be found that there are no prima facie materials. Hence I am of the considered view that these are not fit cases to exercise the inherent powers vested in this Court to quash the proceedings in S.T.No.1594/2015 on the file of the Judicial First Class Magistrate Court-I, Varkkala as against the petitioners/accused Nos.3 and 4. In the result, these Crl.M.C.Nos.4605/2015 & 6910/2015 are found to be devoid of any merit and hence are dismissed. **Sd/-** **M.R.ANITHA** shg **JUDGE** **Crl.MC.No.4605 & 6910 OF 2015 13** ## **APPENDIX OF CRL.MC 4605/2015** **PETITIONER'S/S ANNEXURES:** **ANNEXURE A1 THE CERTIFIED COPY OF COMPLAINT IN ST NO.1594/2015 ON THE FILE OF THE JFMC-I, VARKALA.** **ANNEXURE A2 TRUE PHOTOSTAT COPY OF THE NOTICE ISSUED TO THE ACCUSED PERSONS ANNEXURE A3 TRUE PHOTOSTAT COPY OF THE POSTAL RECEIPTS (9 IN NUMBER) ANNEXURE A4 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARDS (7 IN NUMBER) ANNEXURE A5 PHOTOSTAT COPY OF THE REPLY NOTICE ISSUED BY THE 2ND ACCUSED.** **Crl.MC.No.4605 & 6910 OF 2015 14** ## **APPENDIX OF CRL.MC 6910/2015** ## **PETITIONER'S/S ANNEXURES:** |**ANNEXURE A1**|**TRUE PHOTOSTAT COPY OF COMPLAINT IN ST**<br>**NO.1594/2015 ON THE FILE OF THE JFMC-I, VARKALA**| |---|---| |**ANNEXURE A2**|**TRUE PHOTOSTAT COPY OF THE NOTICE ISSUED TO THE**<br>**ACCUSED PERSONS**| |**ANNEXURE A3**|**TRUE PHOTOSTAT COPY OF THE POSTAL RECEIPTS (9 IN**<br>**NUMBER)**| |**ANNEXURE A4**|**TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARDS**<br>**(7 IN NUMBER)**| |**ANNEXURE A5**|**TRUE PHOTOSTAT COPY OF THE REPLY NOTICE ISSUED**<br>**BY THE 2ND ACCUSED**|