Contempt of Court Case (Civil) No. 561 of 2018, High Court of Kerala at Ernakulam (Con.Case(C).No.561/2018)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 2ND DAY OF APRIL 2018 / 12TH CHAITHRA, 1940** **Con.Case(C).No. 561 of 2018** **-----------------** **AGAINST THE ORDER CRL.M.A NO. 5360/2017 IN CRL.M.C. NO. 3314/2017 DATED 16.05.2017 ------------------** ## **PETITIONERS/PETITIONERS** **-------------------------** **1 T.PRABHAKARAN,** **S/O.BELLACHI, AGED 52 YEARS, KUMBACHIMOOLA HOUSE, BANDADUKA P.O., CHENKALA, VIA KASARAGOD.** **2 NIRMALA PRABHAKARAN,** **W/O.T.PRABHAKARAN, AGED 48 YEARS, KUMBACHIMOOLA HOUSE, BANDADUKA P.O., CHENKALA, VIA KASARAGOD.** **3 PRABHU,** **AGED 19, S/O.T.PRABHAKARAN, KUMBACHIMOOLA HOUSE, BANDADUKA P.O., CHENKALA, VIA KASARAGOD.** **BY ADV.SMT.MEREENA JOSEPH** ## **RESPONDENT:** **--------------** **K.HARISH CHANDRA NAIK,** **(THE AGE OF RESPONDENT AND THE NAME OF HIS FATHER ARE NOT KNOWN TO THE PETITIONERS AND HENCE THE SAID DETAILS ARE NOT INCORPORATED IN THIS CONTEMPT CASE (CIVIL), DEPUTY SUPERINTENDENT OF POLICE, SMS P.S.KASARAGOD.** **BY GOVERNMENT PLEADER SRI. SAIGI JACOB PALATTY** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 02-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** **19.04.18** ## **Con.Case(C).No. 561 of 2018 ------------------------------** ## **APPENDIX** ## **----------** ## **PETITIONERS ANNEXURES** ## **-----------------------** **ANNEXURE A1 CERTIFIED COPY OF THE INTERIM ORDER OF STAY IN CRL.M.A. NO. 5360/2017 IN CRL.M.C. NO. 3314/2017 OF THIS HON'BLE COURT DATED 16.05.2017 ANNEXURE A2 TRUE COPY OF THE EXTENSION ORDER DATED 5.6.2017 IN CRL.M.A. NO. 5360/2017 IN CRL.M.C. NO. 3314/2017 ANNEXURE A3 TRUE COPY OF THE EXTENSION ORDER DATED 4.7.2017 IN CRL.M.A. NO. 5360/2017 IN CRL.MC. NO. 3314/2017 ANNEXURE A4 TRUE COPY OF THE EXTENSION ORDER DATED 7.11.2017 IN CRL.M.A. NO. 5360/2017 IN CRL.MC. NO. 3314/2017 ANNEXURE A5 TRUE COPY OF THE EXTENSION ORDER DATED 9.02.2018 IN CRL.M.A. NO. 5360/2017 IN CRL.MC. NO. 3314/2017 ANNEXURE A6 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 172/2017 OF BEDAKAM POLICE STATION KASARAGOD FIELD BY THE RESPONDENT BEFORE THE DISTRICT & SESSIONS COURT, KASARAGOD DATED 9.9.2017** ## **RESPONDENTS ANNEXURES NIL -----------------------** **/TRUE COPY/ PA TO JUDGE** **sdr/19.04.18** ## ALEXANDER THOMAS, J. ----------------------------- C.O.C.No.561 Of 2018 --------------------------------- Dated this the 2nd day of April, 2018. ## J U D G M E N T The above Contempt of Court Case has been filed alleging violation of the interim order dated 16.5.2017 passed by this Court on Crl.M.A.No.5360/2017 in Crl.M.C.No.3314/2017 filed by the petitioner herein. As per the said interim order dated 16.5.2017 rendered by this Court (as per Anx.A-1) it was ordered that all further proceedings in relation to impugned Anx.A-1 F.I.R in Crime No.172/2017 of Bedakam Police Station, Kasaragod, will stand stayed. The said interim order has been extended from time to time as can be seen from Anx.A-2 to A-5. It is stated by the petitioner that in spite of the said stay order, the Police authorities concerned has filed Anx.A-6 final report/charge sheet No.419/17 dated 19.9.2017 before the Sessions Court, Kasaragod, in respect of Crime No.172/17 of Bedakam Police Station, Kasaragod for offence punishable under Secs.341, 323 r/w Sec.34 of the IPC and Sec.3(1)(s), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. The petitioner would ::2:: C.O.C.No.561 Of 2018 contend that the submission of the final report/charge sheet as per Anx.A-6 dated 19.9.2017 is in blatant violation of Anx.A-1 interim order, which was in vogue until 9.3.2018 and the respondent has committed Contempt as envisaged in the provisions of the Contempt of Courts Act and the Rules framed thereunder. 2. Heard Sri.Mereena Joseph, learned counsel for the petitioners-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent-officer. 3. This Court, while issuing notice before admission to the respondent, which was taken by the learned Prosecutor, has passed order dated 15.3.2018, which reads as follows: “ Notice before admission to the respondent, which is taken by learned Prosecutor. 2. The learned Prosecutor appearing for the respondentOfficer submits that some time may be granted for examination of the matters in this Contempt Case and for securing instructions and also to facilitate filing of affidavit by the respondent-Officer within 2 weeks. Learned Prosecutor submits that after examination of the matters, necessary advise and instructions will be given to the respondent-Officer. 3. Smt.Mereena Joseph, learned counsel for the petitioners/accused raised an apprehension that in the meanwhile the court below should not proceed further with the impugned final report which has been filed in blatant violation of the Anx.A-1 order passed by this Court and this Court may direct that further proceedings before the court below pursuant to the filing of final report/charge sheet may be kept in abeyance. 4. Accordingly, it is ordered in the interest of justice for the preservation of the subject matter of the lis that, further proceedings before the competent court concerned in pursuance of Anx.A-6 final report/charge sheet arising out of F.I.R. in Crime No.172/2017 of Bedakam Police Station, ::3:: C.O.C.No.561 Of 2018 shall be kept in abeyance. Learned Prosecutor will ensure that the respondent-Officer produces a copy of this order before the competent court concerned for necessary information. The petitioners are also at liberty to produce a copy of this order before the said court for such information.” 4. Now, Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent-officer, would submit on the basis of instructions that the respondent will take steps to ensure that the respondent files an application under Sec.173(8) of the Cr.P.C so as to secure permission from the Sessions Court for conduct of further investigation in the matter and further that this Court may also pass appropriate orders in this Contempt Case so as to safeguard the interest of the petitioners taking note of the fact that Anx.A-1 interim order was in vogue at the time when Anx.A-6 final report/charge sheet was filed on 19.9.2017. 5. Smt.Mereena Joseph, learned counsel for the petitioners/accused would submit that this Court may order that further proceedings before the Sessions Court, Kasaragod, which is dealing with Anx.A-6 final report/charge sheet as well as further investigation before the competent Police authorities may be ordered to be kept in abeyance until the disposal of Crl.M.C.No.3314/2017 on the file of this Court on which Anx.A-1 interim stay was passed by this Court. Further, it is also submitted by the learned counsel for the petitioners/accused that recently a Two-Judge Bench of the Apex Court has rendered judgment ::4:: C.O.C.No.561 Of 2018 dated 20.3.2018 in the case in Dr.Subhash Kashinath Mahajan v. The State of Maharashtra & ors ., in Crl.A.No.416/2018 wherein it has been inter alia held that to avoid false implication of an innocent, preliminary enquiry has to be conducted by an officer not below the rank of Deputy Superintendent of Police to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. It is urged by the petitioner that in the instant criminal investigation has been conducted without conduct of such preliminary enquiry and therefore the entire proceedings are vitiated, etc. It has been held by the Apex Court in the above said judgment that certain procedural safeguards should be scrupulously followed by the investigation authorities in the matter of offences alleged under the Schedules Castes and Schedules Tribes (Prevention of Atrocities) Act and that the present impugned action taken by the investigating Police authorities concerned is in blatant violation of the direction issued by the Apex Court and that the impugned action is liable to be interfered with by this Court on account of those aspects as well. Per contra, Sri.Saigi Jacob Palatty, learned Prosecutor, would urge that it has been specifically ordered in the said judgment in dated 20.3.2018 in Crl.A.No.416/2018 by the Apex Court ::5:: C.O.C.No.561 Of 2018 that the said direction issued in that judgment are only prospective in nature and therefore it will not affect the investigation of a crime, which has been registered before the judgment dated 20.3.2018 in Crl.A.No.416/2018 and at best, actually it would applicable for crimes which are registered after 20.3.2018 (date of judgment). Further, it is also submitted by the learned Prosecutor that it is learnt that the competent Ministry of Government of India is moving Review Petition to impugn the said judgment dated 20.3.2018 of the Apex Court. 6. It is further submitted by the learned counsel for the petitioners that the petitioners have been advised to file additional affidavit before this Court in the pending Crl.M.C.No.3314/2017 to raise such additional grounds in the light of the latest judgment of the Apex Court on the subject and that the petitioners are prepared for early hearing and disposal of the main matter in Crl.M.C.No.3314/2017. 7. Learned Prosecutor appearing for the respondent-officer would also submit that the State would also fully welcome the said suggestion for early hearing and disposal of Crl.M.C.No.3314/2017. In the light of these aspects, it is ordered that further steps before the Sessions Court, Kasaragod, which is dealing with the matter in Anx.A-6 ::6:: C.O.C.No.561 Of 2018 final report/charge sheet in relation to Crime No.172/2017 of Bedakam Police Station as well as further action by the Police authorities concerned in relation to the said impugned criminal proceedings arising out of Crime No.172/2017 of Bedakam Police Station, Kasaragod, shall be kept in abeyance until the final disposal of Crl.M.C.No.3314/2017, which is pending before this Court. Both sides would also submit that the matter in Crl.M.C.No.3314/22017 may be taken up for final disposal immediately after the re-opening of the Court after the summer vacation, 2018. Accordingly, at the request of both sides, it is ordered that the Registry will take steps to ensure that Crl.M.C.No.3314/2017 is posted before the appropriate court immediately after the re-opening of the Court after summer vacation. With these observations and directions, the Contempt of Court Case will stand closed. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.