Crl.M.C. No. 1303 of 2012, In the High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936** ## **Crl.MC.No. 1303 of 2012 ()** ## **--------------------------CC.NO. 15/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MUVATTUPUZHA ----------------------** **PETITIONERS/ACCUSED NO.1, 2, 3, 6, 7 & 16 :** **-----------------------------------------------------------------** ## **1. A.SOMAN** - **S/O.ACHUDAN, ERAPPANAL VEEDU (SASTHRANJALI) GOVERNMENT GRAMA PANCHAYAT SECRETARY M.M.C.WARD NO.17, GIRI NAGAR, MARADI VILLAGE MUVATTUPUZHA.** **2. MOHANAKUMAR, S/O.KARUNAKARAN, VALANIKKATTU, MUNDAKKAL M.M.C.WARD NO.17, GIRI NAGAR, MARADI VILLAGE MUVATTUPUZHA.** **3. REJI V. PAUL, S/O.PAULOSE, VATHIYATTU VEEDU, M.M.C.WARD NO.17 GIRI NAGAR, MARADI VILLAGE, MUVATTUPUZHA.** ## **4. DAVID CHERIYAN,** - **S/O.CHERIYAN, ELAMBRATHOTTATHIL VEEDU M.M.C.WARD NO.17, GIRI NAGAR, MARADI VILLAGE MUVATTUPUZHA.** ## **5. GEORGE PAUL,** - **THOTTIYIL VEETTIL, M.M.C.WARD.NO.17, GIRI NAGAR MARADI VILLAGE, MUVATTUPUZHA.** **6. ARAVINDHAKSHAN NAIR, MADAVAN PILLAI, NIRAVATHANAL VEEDU M.M.C.WARD NO.17, GIRI NAGAR, MARADI VILLAGE MUVATTUPUZHA.** **BY ADVS.SRI.JOMY GEORGE SRI.SUNU P.JOHN SRI.SEBASTIAN THOMAS SRI.P.REJINARK** **...2/-** **Crl.MC.No. 1303 of 2012 () -2-** ## **RESPONDENT/COMPLAINANT AND STATE :** **----------------------------------------------------------------** ## **1. NARAYANAN NAIR** **S./O.OZHIYARATHU KRISHNAN NAIR KOLLAPPARAMBIL VEETTIL, VADAKKAN MARADI KARA MARADI VILLAGE, MUVATTUPUZHA TALUK -686661.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ***ADDL. R3 IMPLEADED** **----------------------------------** - ***3. BALAKRISHNAN NAIR** - **AGED 63 YEARS S/O. LATE NARAYANAN NAIR KOLLAPPARAMBIL VEETTIL MUVATTUPUZHA P.O., ERNAKULAM.** ***IS IMPLEADED AS ADDITIIONAL R3 AS PER ORDER DATED 31/3/14 IN CRL.M.A. NO. 2881/14 IN CRL.M.C. NO. 1303/12.** **R1 BY ADVS. SRI.K.G.SARATHKUMAR** **SRI.S.RAJKUMAR SRI.N.JAGATH R2 BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...3/-** ## **Crl.MC.No. 1303 of 2012 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **-------------------------------------------** |**ANNEXURE-A1**|**TRUE COPY OF THE PETITION FILED BY 150 PERSONS**| |---|---| ||**AGAINST THE IST RESPONDENT BEFORE THE REVENUE**| ||**DIVISIONAL OFFICER/SUB DIVISIONAL MAGISTRATE.**| |**ANNEXURE-A2**|**TRUE COPY O FTHE FIR, DATED 22.11.2004.**| |**ANNEXURE-A3**|**TRUE COPY OF THE INFORMATION RECEIVED BY THE 3RD**| ||**PETITIONER FROM THE CIRCLE INSPECTOR OF POLICE,**| ||**MUVATTUPUZHA.**| |**ANNEXURE-A4**|**TRUE COPIES OF THE LEGAL NOTICE DATED 14.05.2010 SENT**| ||**TO ONE OF THE SIGNATORIES TO ANNEXURE A-1 PETITIONER.**| |**ANNEXURE-A5**|**TRUE COPY OF THE REPLY NOTICE DATED 24.05.201O SENT**| ||**BY THE PETITIONERS TO THE IST RESPONDENT.**| |**ANNEXURE-A6**|**CERTIFIED COPY OF THE COMPLAINT FILED BY THE IST**| ||**RESPONDENT BFRORE THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT, MUVATTUPUZHA ON16.8.2010.**| |**RESPONDENTS'**|**EXHIBITS : NIL**| |**--------------------------------------------------------**|| ||**//TRUE COPY//**| **P.A. TO JUDGE Mn** ## **P.D. RAJAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1303 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of June, 2014** ## **O R D E R** This is a petition filed u/s. 482 of Cr.P.C to quash Annexure-A6 complaint filed before the Judicial First Class Magistrate Court, Muvattupuzha filed under Sections 143, 146, 153A, 499, 504, 505 and 509 of IPC against the residents of Tagore Nagar Residents' Association, Giri Nagar Residents' Association, Gandhi Nagar Residents' Association, Royal Flat Residents' Association, and residents of Ward No.17 and 18 of the Muvattupuzha Municipality. After filing this Crl.M.C., the first respondent died and his legal heir was impleaded. 2. The petitioners allege that the first respondent and his family members are involved in several criminal cases (10) and is making nuisance, disturbance and trouble to the local residents, which is unbearable and intolerable for them. In the circumstance, they filed Annexure-A1 mass petition before various authorities and the petitioners are Crl.M.C.No.1303 of 2012 **-2-** signatories to that petition. The first respondent's son was also an accused in another Cr.P.C. proceedings under Section 107 before the Sub Divisional Magistrate, Muvattupuzha for his criminal activities which disturbed the public tranquility. When the disturbance of the first respondent and his children were intolerable, the petitioners and others approached this Court by filing W.P.C No.17045/2010 seeking police protection. During the pendency of the above writ petition, the first respondent filed Annexure-A6 without any bonafides. If trial is proceeded, it will be a mere abuse of the process of court. Hence they pray to quash Annexure-A6. 3. The case of the first respondent before the Judicial First Class Magistrate Court, Muvattupuzha was that he belongs to a reputed family and is residing at Muvattupuzha for the last 65 years. The respondents and others in the above case filed a petition before the Tahsildar, Muvattupuzha on 10.01.2010, in which, they made false allegation affecting the reputation of his children Crl.M.C.No.1303 of 2012 **-3-** and family members. He admitted that several civil cases are pending between the petitioners and the respondents. He alleges that the petitioners who signed in that petition are involved in several criminal cases and suppressing those aspects they filed W.P.(C) No.17045/2010 and the complaint. In the circumstance, the first respondent filed a petition before the Judicial First Class Magistrate Court, Muvattupuzha. 4. The petitioners contended that they are entitled to get protection of Eighth Exception to Section 499 of IPC. Several criminal cases are pending against the first respondent and additional 3[rd] respondent. The above petition was filed in good faith and is made for public good. Therefore, no complaint will lie against such action. 5. The learned counsel appearing for the first and third respondents strongly resisted the above contention and contended that the first petitioner is a government employee and is facing disciplinary proceedings from his department. The third petitioner has some dispute with Crl.M.C.No.1303 of 2012 **-4-** first and third respondents. There is some dispute between the second petitioner and the third respondent regarding a pathway through the property of the third respondent and by filing this false complaint they are trying to trespass into the third respondent's property only for protecting the interest of the second petitioner. Hence they pray to dismiss the application. 6. According to Section 482, the inherent jurisdiction can be invoked to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of Court or otherwise to secure the ends of justice. While exercising such jurisdiction, this Court would not ordinarily conduct an enquiry with regard to the evidence produced before Court as to whether it is reliable or not or whether it is sufficient for a conviction. At this stage, this court is bound to consider the prima facie satisfaction of a case. The specific contention of the petitioners in this case is that they filed a petition before the Tahsildar, Muvattupuzha with the help of Crl.M.C.No.1303 of 2012 **-5-** other residents' association in good faith. Therefore, petitioners are entitled to get protection of Eighth exception to Section 499 of the IPC. Eighth Exception of Section 499 IPC reads thus: Eighth Exception.- **Accusation preferred in good faith to authorised person** .-It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation. What was the lawful authority over the first and third respondents was not mentioned by the petitioners while claiming the exception mentioned under 8[th] clause. According to the party respondents, petitioners made false and malicious allegations with intention to harm their reputation. Specific allegation is made not only against the first respondent but against his male and female children also. What was the criminal act done by the female members are not mentioned in the petition. While considering that aspect, I have to consider whether the allegations prima facie establish any offence as alleged. Secondly, if prima facie offence is made out whether the Crl.M.C.No.1303 of 2012 **-6-** interest of justice permit to continue such prosecution. Considering the totality of the averment in Annexure A-6, I am of the opinion that prima facie case is made out against the petitioners in Annexure A-6. That be so, I am of the view that this is not a fit case to invoke inherent jurisdiction. The Apex Court in **M.N. Damani v. S.K. Sinha and Ors. [(2001) 5 SCC 156]** held as follows: “For deciding whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied:(1) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (2) whether it is expedient and in the interest of justice to permit a prosecution to continue. On a plain reading of the order of the Magistrate issuing summons to the respondents, keeping in view the allegations made in the complaint and sworn statement of the appellant, it appears that a prima facie case is made out at that stage. There are no special features in the case to say that it is not expedient and not in the interest of justice to permit the prosecution to continue. The Single Judge of the High Court failed to apply this test. The High Court could not say at that stage that there was no reasonable prospect of conviction resulting in the case after a trial. Assuming that the imputations made could be covered by Exception 9 of Section 499 IPC., several questions still remain to be examined - whether such imputations were made in good faith, in what circumstances, with what intention, etc. All these can be examined on the basis of evidence in the trial. Having regard to the facts of the case it must therefore, be held that the High Court committed a manifest error in quashing the criminal proceedings exercising jurisdiction under Section 482 Cr.PC.” Crl.M.C.No.1303 of 2012 **-7-** ## 7. The Apex Court in **State of Haryana** v. **Bhajanlal** , [1992 SCC (Crl) 426] held s follows: “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused.(2)Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance.” In the circumstance, considering the averments, I am of the view that this is not a fit case to invoke inherent Crl.M.C.No.1303 of 2012 **-8-** jurisdiction under Section 482 Cr.P.C. and the allegations are to be examined by the Judicial First Class Magistrate, Muvattupuzha by an enquiry or trial. Therefore, I cannot invoke such jurisdiction at this stage and I dismiss this application. Sd/- **P.D. RAJAN, JUDGE** //True copy// P.A. TO JUDGE shg/