CRL.MC No. 11238 of 2023: State of Kerala v. Shanavas M.K., Asharaf K, Fasalu @ Fasaludheen M, Nisam M.A, Thafseer K, Seidu and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** # **`FRIDAY, THE 19[TH] DAY OF JANUARY 2024 / 29TH POUSHA, 1945`** ## **`CRL.MC NO. 11238 OF 2023`** ``` CRIME NO.559/2017 OF HOSDURG POLICE STATION, KASARGOD ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 1004/2018 OF JUDICIAL MAGISTRATE ``` ## **`OF FIRST CLASS-I,HOSDRUG`** ``` PETITIONERS/ACCUSED NOS.1,2,4 & 7 TO 9: ``` - **`1 SHANAVAS M.K AGED 40 YEARS S/O ABDUL RAHMAN, THAVAKAL MANZIL, MADIYA, AJANUR, KASARAGOD, PIN - 671531`** - **`2 ASHARAF. K AGED 44 YEARS S/O ASSAINAR, P.M HOUSE, MANIKKOTH, AJANUR, KASARAGOD, PIN - 671531`** - **`3 FASALU @ FASALUDHEEN M AGED 39 YEARS`** ``` S/O MOIDEEN, SOUTH CHITHARI, CHITHARI P.O, HOSDURG, KASARAGOD, PIN - 671316 ``` - **`4 NISAM M.A AGED 27 YEARS`** ``` S/O MUHAMMED KUNHI, M.P HOUSE, VELADATH VALAPPU, MADIYAN, MANIKKOTH, AJANUR, KASARAGOD, PIN - 671531 ``` - **`5 THAFSEER. K AGED 28 YEARS S/O BASHEER, KOPPATTY HOUSE, CHERIYA MASJID, MANIKKOTH, AJANUR, KASARAGOD, PIN - 671531`** - **`6 SEIDU AGED 41 YEARS`** ``` S/O KUNHAMMED HAJI, ANAS VILLA, MADIYAN, AJANUR VILLAGE, KASARAGOD, PIN - 671531 ``` - **`BY ADVS.`** ``` RAHUL SASI P.ARDRA MENON NEETHU PREM ALFIN NADARSHAW ``` ``` CRL.MC NO. 11238 OF 2023 ``` ``` ..2.. ``` ## **`RESPONDENT/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER HOSDURG POLICE STATION, KASARAGOD, PIN - 671316 ``` ## **`OTHER PRESENT:`** ``` SRI. M.C. ASHI (PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 11238 OF 2023 ``` ``` ..3.. ``` ## **BECHU KURIAN THOMAS, J. =========================== Crl.M.C. No. 11238 of 2023 =========================== Dated this the 19[th] day of January, 2024** ## **O R D E R** Petitioners are accused Nos. 1, 2, 4 and 7 to 9 in C.C. No.1004 of 2018 on the files of the Judicial Magistrate of First Class-I, Hosdurg arising out of Crime No.559 of 2017 of Hosdurg Police Station, registered for the offences under Sections 143, 145, 147, 341 and 353 read with Section 149 of the Indian Penal Code, 1860. 2. According to the prosecution, the accused had, on 23.05.2017 at 6.20 p.m., formed themselves into an unlawful assembly and while celebrating their victory in a football tournament, restrained CWs.1 to 3 during their victory rally and acted against the orders of the police and restrained them from discharging their duty and thereby, committed the offences alleged. 3. Sri. Rahul Sasi, the learned Counsel for the petitioners contended that, the entire prosecution allegations are false, and none of the offences are made out against the petitioners. According to the learned counsel, petitioners were only indulging in a victory celebration of a football tournament carrying the trophy, they received, which was not appreciated by CW1-a police officer. The ``` CRL.MC NO. 11238 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** learned counsel further submitted that, no incident of any wrongful restraint or assault took place and the statements have been taken with malafide intentions for the purpose of creating a case against the petitioners for indulging in a victory celebration. It was submitted that the prosecution is vexatious and unwarranted and is liable to be quashed. 4. Sri. Ashi M.C., the learned Public Prosecutor on the other hand, contended that, the offences alleged against the petitioners are explicitly made out from the final report and therefore, the jurisdiction under Section 482 of Cr.P.C. cannot be invoked to quash the proceedings. It was further submitted that, the allegations, if proved in evidence, certainly make out the offences alleged and therefore, the remedy of the petitioners is to face the trial and not to invoke the jurisdiction under Section 482 Cr.P.C. It was also pointed out that, the 1[st] accused is involved in three other crimes and therefore, the proceedings ought not to be quashed and the petitioners may be relegated to undergo trial. 5. While appreciating the rival contentions, it is noticed that, the main offences alleged against the petitioners are under Sections 341 and 353 of IPC, apart from Section 149 of the IPC. The sequence of events that led to the alleged commission of offence indicate that, while the petitioners were about to travel a motor cycle rally, holding aloft the trophy won by them, the defacto ``` CRL.MC NO. 11238 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** complainant along with other police personnel requested them to restrain from indulging in such victory celebrations. Enraged by the said request, petitioners allegedly restrained the police officers and obstructed them from discharging their duty and further refused to abide by the directions. 6. The final report alleges that the defacto complainant had directed the petitioners not to conduct a bike rally. Petitioners had not, even going by the prosecution case, started any bike rally, to enable the defacto complainant to conclude that there will be a blockade. The nature of allegations indicate that the proceedings are initiated for extraneous reasons and as a means to victimize the petitioners for questioning the direction not to conduct a bike rally. 7. Apart from the above, though Section 353 IPC is alleged against the petitioners, neither the statement of CW1 or those of other witnesses indicate that any of the police officers, were assaulted or that any force was used against them to prevent the execution of their duty as public servants. The primary requirement for attracting Section 353 IPC is assault or use of criminal force. Such an allegation is totally absent and hence the said offence is not attracted. 8. Further, though there is a statement that the police officers were restrained, on an appreciation of the entire circumstances, this Court is of the opinion that, the said allegations ``` CRL.MC NO. 11238 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** have been incorporated with a view to proceed against the accused criminally. Curiously, there is no reference to the person who restrained or the person who was restrained. Except for a vague statement that the accused had restrained the police officers, there is nothing to attract Section 341 IPC. Even if the allegations are assumed to be admitted, still, in the absence of any specific person mentioned or identified as having committed the offence, I am of the view that the prosecution of the petitioners cannot under any circumstances end in conviction. The allegations are, inherently impossible of belief too. The continuance of the prosecution is therefore, an abuse of process of court and no purpose would be achieved by the accused being put through the trauma of a trial. 9. In this context, it is apposite to mention that in the decision in **State of Hariyana & Others v. Bhajanlal & Others (1992 Suppl. (1) SCC 335)** the Supreme Court had observed that, in cases were the allegations are inherently impossible of belief, the jurisdiction under Section 482 of Cr.P.C can be invoked to quash the proceedings. Further, in a recent decision in **Vishnu Kumar Shukla v. State of Uttar Pradesh (2023 INSC 1026)** it was held that, an accused must be protected against vexatious and unwarranted criminal prosecution and from unnecessarily being put through the rigours of an eventual trial. 10. Taking note of the entire circumstances of the case, this ``` CRL.MC NO. 11238 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** Court is of the view that, the present case falls within the categories enumerated in the aforesaid decisions, requiring to invoke the inherent jurisdiction under Section 482 of Cr.P.C to quash the proceedings. 11. Accordingly, all further proceedings against the petitioners in C.C. No.1004 of 2018 on the files of the Judicial Magistrate of First Class-I, Hosdurg are hereby quashed. This Crl.M.C is allowed as above. Sd/- **BECHU KURIAN THOMAS JUDGE** LU ``` CRL.MC NO. 11238 OF 2023 ``` ``` ..8.. ``` ## **`APPENDIX OF CRL.MC 11238/2023`** ``` PETITIONER ANNEXURES : ``` ``` ANNEXURE A1THE TRUE COPY OF THE FIS AND FIR IN CRIME NO. 559 OF 2017 OF HOSDURG POLICE STATION ANNEXURE A2THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 559 OF 2017 OF HOSDURG POLICE STATION ``` ``` // True Copy // PA To Judge ```