Criminal M.C. No. 948 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HON'BLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934** ## **Crl.MC.No. 948 of 2008 ( ) --------------------------** ## **CC.754/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,HOSDRUG ------------PETITIONERS/ACCUSED:** **---------------------** ## **1. P.KARUNAKARAN, AGED 45 YEARS,** - **S/O. PANAKKOOL KELU, NELLIYADUKAM, KOLLAMPARA PO. KINANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DIST.** **2. GEETHA KARUNAKARAN, AGED 40 YEARS, W/O. P.KARUNAKARAN, PANAKKOOL NELLIYADUKAM KOLLAMPARA P.O., KINANOOR VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT.** **3. BRITTO JOSEPH, AGED 45 YEARS, S/O.JOSEPH, THEKKUMKATTIL HOUSE, NELLIYADUKAM KOLLAMPARA P.O., KINANOOR VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT.** **4. REVIKUMAR M.K., AGED 52 YEARS, S/O.KRISHNA PILLAI, RAVIMANDIRAM, NELLIYADUKAM KOLLAMPARA P.O., KINANOOR VILLAGE, HOSDURG TALUK KASARAGOD DIST., NOW R/AT "CHANDRALAYAM", M.L.A.ROAD UDAYAMPEROOR P.O., TRIPUNITHURA, ERNAKULAM DISTRICT** **5. GOPAKUMAR M.K., AGED 46 YEARS, S/O.KRISHNA PILLAI, NELLIYADUKAM, KOLLAMPARA P.O. KINANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DIST.** **6. CHANDRAMATHI M., AGED 46 YEARS,** - **W/O.RAVIKUMAR M.K., RAVIMANDIRAM, NELLIYADUKAM KOLLAMPARA P.O., KINANOOR VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT.** **7. ANITHA M., AGED 38 YEARS, W/O. GOPAKUMAR M.K., NELLIYADUKAM, KOLLAMPARA PO. KINANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DIST.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.A.S.THOMAS SMITH** **VK** **Crl.MC.No. 948 of 2008 ( ) --------------------------** ## **RESPONDENT/COMPLAINANT:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY** **THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **2. CYCILY ROY, AGED 34 YEARS, W/O. ARAKKAL ROY** **@ ROBERT, ARUKAKKAL HOUSE, NELLIYADUKAM KOLLAMPARA P.O., KINANOOR VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT.** ## **R1 BY PUBLIC PROSECUTOR SRI.LIJU STEPHEN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VK** ## **Crl.MC.No. 948 of 2008 ( )** ## **--------------------------** **APPENDIX ---------** ## **PETITIONER'S ANNEXURES** **---------------------** **ANNEXURE A1. CERTIFIED COPY OF THE COMPLAINT, C.C. NO.754/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.II, HOSDURG.** **ANNEXURE A2. COPY THE REFER REPORT IN R.C. NO.51/2007 SUBMITTED BY THE S.H.O NILESHWAR POLICE STATION BEFORE THE JFCM-II, HOSDURG IN THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT ON 3.8.2007.** **ANNEXURE A3. COPY OF THE COMPLAINT DATED 20.7.2006 SUBMIITTED BY THE 2ND RESPONDENT BEFORE THE SUPERINTENDENT OF POLICE, KASARGOD.** **ANNEXURE A4. COPY OF THE REPORT FILED BY THE CIRCLE INSPECTOR OF POLICE, WOMEN'S CELL, KASARGOD.** **ANNEXURE A5. COPY OF THE COMPLAINT DATED 4.6.2007 FILED BY THE 2ND RESPONDENT BEFORE THE HOME MINISTER OF KERALA.** **ANNEXURE A6. COPY OF REPORT SUBMITTED BY THE DEPUTY SUERINTENDENT OF POLICE, KANHANGAD.** **ANNEXURE A7. COPY OF THE COMPLAINT DATED 30.9.2006 FILED BY THE 2ND RESPONDENT BEFORE THE KERALA WOMEN'S COMMISSION.** **ANNEXURE A7(A). COPY OF THE ORDER DATED 28.12.2006 OF THE WOMEN'S COMMISSION.** **ANNEXURE A8. COPY OF THE ORDER DATED 28.11.2007 IN I.A. NO.4552/07 IN O.S. NO.525/07 OF THE MUNSIFF COURT, HOSDURG.** **ANNEXURE A9. COPY OF THE CERTIFICATE ISSUED BY THE SR. GENERAL MANAGER (BENEFIT–ADMINISTRATION), BHARAT PETROLEUM CORPORATION LTD., KOCHI REFINERY AND TH ATTENDANCE CHART.** **RESPONDET'S ANNEXRE'S : NIL** **---------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **K. RAMAKRISHNAN, J.** ---------------------------------------Criminal M.C. No.948 of 2008 -----------------------------------------Dated this the 31[st] day of January, 2013 ## **J U D G M E N T** This is an application filed by the accused persons in C.C. No.754 of 2007, on the file of the Judicial First Class Magistrate Court No.II, Hosdurg to quash the complaint under Section 482 of the Criminal Procedure Code. It is alleged in the petition that petitioners are accused numbers 1 to 7 in C.C. No.754 of 2007 on the file of the Judicial First Class Court No.II, Hosdurg, and it was a protest complaint filed by the second respondent, on the basis of which the case has been taken on file. It is also seen from the complaint that the complainant/second respondent filed a private complaint alleging offence under Section 143, 147, 148, 447, 323, 506(ii) read with Section 149 of Indian Penal Code, alleging that the incident happened on 11. 06. 2006 at 4.30 p.m. The accused formed themselves into an unlawful assembly and criminally trespassed into the residential compound of the complainant, armed with deadly weapons and asked her to vacate the premises and thereafter they caused hurt to her. The learned Magistrate forwarded the case for investigation under Section _Criminal M.C. No.948 / 2008_ 2 156(3) of Criminal Procedure Code and on that basis, a crime was registered as Crime No.237/2006 of Nileshwaram Police Station under Section 143, 147, 148, 447, 323 read with Section 149 of Indian Penal Code, and after investigation, the investigating officer filed a refer report, stating that the allegations are false. On getting the refer notice, the complainant filed the present complaint, as protest complaint. After taking sworn statement, the case was taken on file as C.C. No.754/2007 and process was issued to the accused. On getting summons from the court, they came before this court for quashing the complaint. When notice was issued to respondents, first respondent was represented by learned Public Prosecutor. Though, notice was served on the second respondent/complainant, she did not appear. 2. Learned counsel for the petitioners submitted in support of the case in the application, and also relied on documents produced by her, to show that the complainant was in the habit of filing several false complaints before several authorities, and all those complaints were inquired into by the authorities and no action was taken against the accused persons as they found that the allegations were false. So, according to _Criminal M.C. No.948 / 2008_ 3 learned counsel, the present complaint has been filed only to harass the accused persons and she is taking the law into her hands as an abuse process of law, and as such, the complaint has to be quashed. 3. Learned counsel for the petitioner relied on decision reported in **[S.N. Palanitkar and others v. State of Bihar and another 2001 AIR 2960 (S.C)],** for the proposition that court has got power to quash the proceedings under Section 482 of Criminal Procedure Code, if the alleged acts against the accused not constituting alleged offences for want of satisfying ingredients of offence. In the same decision, it has been observed that the term “sufficient grounds” means satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction. It is also held in the same decision that exercise of inherent power is available to the High Court to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 of Criminal Procedure Code should be consistent with the scope and ambit of the same. In appropriate cases, prevent judicial _Criminal M.C. No.948 / 2008_ 4 process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that, the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the Hon’ble High Court under Section 482 of Criminal Procedure Code, to quash the very issue of process, the High Court on the facts and circumstances of the case has to exercise the powers with said circumspection to really serve the purpose and the object for which they are conferred. That was a case where, in a pure civil matter, where arbitration clause was mentioned for deciding the disputes between the parties, a criminal complaint was filed for cheating and in that circumstance, the Hon'ble Supreme Court said that, 'it was abuse of process of court', and quashed the complaint and that was not the case in hand. On going through the allegations in the complaint, there are allegations of forming of unlawful assembly with deadly weapons, causing voluntary hurt to the complainant and the allegation further was that the police and other authorities under the influence of the respondents are not taking proper action on her complaint and that prompted her to file the protest complaint before the court. _Criminal M.C. No.948 / 2008_ 5 So under the circumstances, at this stage without evidence, it is not possible for this court to come to the conclusion as to whether the allegations are false, whether the delay in filing the complaint is fatal or not etc. as it is matter for evidence. Further she may have explanations for the complaints being rejected by the authorities and that also has to be considered by the court before arriving at any conclusion as to whether the allegations are genuine or not. The court can quash the complaint only if the allegations are not sufficient to attract the offence alleged. But it is not the case in hand. So under the circumstances, I feel that it is not a fit case to invoke the extra ordinary power under Section 482 of Criminal Procedure Code to quash the proceedings as claimed in the petition and the petition is liable to be dismissed. It is made clear that this will not be a bar for the accused to raise all the legal defences available to them, to defend their case in the lower court. With the above observation, the petition is rejected. _Sd/-_ **K. RAMAKRISHNAN,** (Judge) _// True Copy// P.A. To Judge_ _ss_