Crl.M.C. No. 5611 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** ## **Crl.MC.No. 5611 of 2018** **CC NO.991/2017 ON THE FILES OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM** ## **CRIME NO.989/2017 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **CIBI K. CHERIAN, ADVOCATE, AGED 44 YEARS, S/O.K.S.CHERIAN, RESIDING AT KATTAYIL HOUSE, TRIPUNITHURA-682301.** **BY ADVS. SRI.N.J.MATHEWS SMT.LAISA B.JOSE** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2 ANILA, AGED 41 YEARS, W/O. BIJU ALEX, RESIDING AT FLAT NO. 3, RIVER NEST APARTMENT, RIVER EAST ROAD, IRIMPANAM P.O, TRIPUNITHURA, ERNAKULAM DISTRICT-682309.** **R1 BY PUBLIC PROSECUTOR SRI.C.K.PRASAD R2 BY ADVS. SRI.E.C.PAULOSE SMT.BOBBY RAPHEAL.C** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 5611 of 2018** **2** ## **ORDER** The petitioner, a practicing lawyer, has invoked the powers of this Court under Section 482 of the Cr.P.C. His prayer is to quash the proceedings in C.C.No.991 of 2017 pending on the file of the Additional Chief Judicial Magistrate Court, Ernakulam in which case, he faces indictment for having committed offence under Sections 341 and 323 of the IPC. 2. Facts which led to the registration of the above case can be briefly stated thus : The 2[nd] respondent herein is the wife of the brother-in-law of the petitioner herein. Her relationship with her husband was on the rocks and the parties were fighting with each other in various forums. They had a girl child, aged about 14 years. The warring spouses were fighting for her custody before the Family Court, Ernakulam. According to the de facto complainant, on 08.05.2017, an order was passed in her favour by the Family Court permitting her to have the custody of her minor child. In order to prevent the de facto complainant from taking away the child, at about 5.15 p.m, on the same day, the petitioner is alleged to have made an attempt **Crl.MC.No. 5611 of 2018** **3** to whisk away the child in a car. The de facto complainant resisted the acts of the petitioner. She was pushed aside and while doing so, her hands got jammed in between the car doors. He is also alleged to have assaulted the aged father of the 2[nd] respondent. During the melee, the husband of the 2[nd] respondent is alleged to have taken away the child. 3. It appears that on 9.5.2017, at about 7.45 p.m., the 2[nd] respondent, approached the Sub Inspector and gave a statement based on which, Crime No.989 of 2017 was registered on the same day at 11.30 p.m. The time of occurrence is stated as 5.15 p.m on 8.5.2017. The husband of the 2[nd] respondent is seen arrayed as the 2[nd] accused in the said crime. From Annexure-A3, it appears that final report was laid before the learned Magistrate which was taken on file on 18.7.2017. In the final report, the petitioner herein is the sole accused. 4. It would also appear that Crime No.1012 of 2017 was registered at the Ernakulam North Police Station at the instance of the minor daughter of the 2[nd] respondent, wherein the accused is the father of the 2[nd] respondent. He is accused of having committed **Crl.MC.No. 5611 of 2018** **4** offences punishable under Sections 341, 323, and 506 of the IPC. The allegation in the said FIR also relates to the same incident which took place on 8.5.2017 in the premises of the Family Court, Ernakulam. In the statement given by the minor child, she alleges that, on 8.5.2017, when she attempted to go with her father, she was wrongfully restrained and was mauled by the accused with his finger nails and her clothes were torn off. He is also alleged to have criminally intimidated the minor child. It appears from Annexure-2 that final report has been laid by the Police in that crime arraying the father of the 2[nd] respondent as the accused. 5. In the aforesaid fact scenario, the contention of the learned counsel appearing for the petitioner is that the lodging of the criminal proceeding against the petitioner on false and frivolous allegations is with a view to spite him due to private and personal grudge. According to the learned counsel, the incident, which took place on 8.5.2017, was between the minor daughter of the 2[nd] respondent and her grandfather. The husband of the 2[nd] respondent was also present there as is evident from the allegations in the FIR. As the petitioner was the counsel appearing for the husband and as he proved to be a stumbling block in the litigation initiated by the 2[nd] **Crl.MC.No. 5611 of 2018** **5** respondent, untenable allegations are now raised against him, is the submission. In order to persuade this Court to conclude that there are inherent follies in the final report, which would lay bare the falsity of the prosecution case, the learned counsel submitted that the final report would show that the petitioner was arrested on 8.5.2017 and released on bail on the same day itself as is evident from Column No. (xiii) of the report. The crime having lodged on the next day late in the night, the petitioner could never be arrested on the previous day, argues the counsel. The learned counsel further contended that the child had entered the box and had given evidence in M.C.No.27 of 2016 instituted by the 2[nd] respondent before the Gram Nyayalaya, Vadavucode, Kolencherry under Section 12 of the Protection of Women from Domestic Violence Act. The child had narrated the incident, which took place on 08.05.2017 outside the Family Court in all its graphic details and she had reiterated that it was her mother and her grandfather, who had assaulted her on 8.5.2017. The learned counsel would submit the when blatant abuse is shown to have been committed or when gross injustice is brought to the notice of this court, this Court would be well justified in preventing injustice by invoking inherent powers and in quashing the **Crl.MC.No. 5611 of 2018** **6** proceedings. The whole prosecution is tainted with mala fides and permitting the proceedings to continue would be an abuse of process, argues the learned counsel. 6. Per contra, the learned counsel appearing for the de facto complainant submitted that investigation was conducted in a meticulous manner and the final report has been laid. It is submitted by the learned counsel that this Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the final report and that inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice. A detailed evaluation of the evidence is not warranted at this particular stage, submits the learned counsel. 7. I have considered the submissions advanced. Annexure-3 is the FIR in Crime No.989 of 2017, which is seen registered on 09.05.2017 at 11.30 p.m. The 1[st] accused is the petitioner herein and the 2[nd] accused is the husband of the de facto complainant. It is evident from Annexure-3 that the time of receipt of the information at the Police Station is 9.30 p.m. on 09.05.2017 and the **Crl.MC.No. 5611 of 2018** **7** date of the occurrence of the alleged incident is shown as 08.05.2017. It is also evident that it was at 7.45 p.m. on 09.05.2017 that the de facto complainant had presented herself before the Police Station concerned and had furnished information with regard to the incident, which took place on the previous day on 08.05.2017 at 5.15 p.m. The learned counsel has referred to Annexure-3 FIR, wherein it appears that the petitioner was reported to be arrested on 08.05.2017 and he was released on bail on the same day itself. This is the matter, which is highlighted by the learned counsel to contend that there is gross discrepancies with regard to the registration of the FIR as well as the details in the Final Report. Furthermore, Annexure-2 FIR registered at the instance of the minor daughter of the 2[nd] respondent and her deposition before the learned Magistrate would throw serious doubts on the case set up against the petitioner herein. The petitioner is the counsel appearing for the husband of the 2[nd] respondent in the proceedings between the parties and his specific case is that he is being targeted for being the lawyer of the husband. The registration of the crime appears to be on a weak edifice and the materials before this Court, including the version of the child, whose custody appears to have **Crl.MC.No. 5611 of 2018** **8** been the cause of dispute clearly falsify the case of the prosecution. A criminal proceeding cannot be permitted to degenerate into a weapon of harassment or persecution. 8. In **State of Haryana v. Bhajan Lal** (1992 Crl.L.J 527), the question which came up for consideration was as to whether quashing of the FIR filed against the respondent Bhajan Lal for the offences under Sections 161 and 165 of the IPC and Section 5(2) of the Prevention of Corruption Act was proper and legal. Reversing the order passed by the High Court, the Apex Court has laid down the circumstances under which such power could be exercised. Apart from reiterating the earlier norms laid down by the previous decisions of the Apex Court, it was further explained that such power could be exercised where the allegations made in the FIR or complaint 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. In paragraph (102), it was observed as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and **Crl.MC.No. 5611 of 2018** **9** reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint 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 concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or **Crl.MC.No. 5611 of 2018** **10** where there is a specific provision in the Code or the concerned Act, 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 accused and with a view to spite him due to private and personal grudge. 9. Thus, the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue. If the above considerations are satisfied, the Court may take into consideration the special facts of a case and quash the proceeding even though it may be at a preliminary stage. 10. Further, in **G. Sagar Suri and another v. State of U.P. and others** [(2000) 2 SCC 636], the Apex Court had held criminal **Crl.MC.No. 5611 of 2018** **11** proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to exercise a great deal of caution as it is a serious matter for the accused. 11. In the case on hand, there is every reason to conclude that the institution of the criminal proceeding is manifestly attended with mala fide insofar as it concerns the petitioner. A proceeding before a criminal court ought not to be permitted to degenerate into a weapon of – harassment or persecution. (see **State of Karnataka v. Muniswami** AIR 1977 SC 1489). When it is apparent that the very nature of the material on which the structure of the prosecution rests is weak and crumbling and the continued prosecution of the accused would result in grave injustice, this Court will be well justified in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. For the above reasons and in the light of the materials discussed above, I am of the considered view that the continuance of criminal proceedings against the petitioner herein would result in abuse of process. This is a fit case warranting invocation of the extraordinary inherent powers of this Court to quash the proceedings. **Crl.MC.No. 5611 of 2018** **12** In the result this petition will stand allowed. Annexure- A3 final report and all further proceedings against the petitioner now pending as C.C. No.991 of 2017 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** DSV/- //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 5611 of 2018** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 TRUE COPY OF THE ORDER IN M.C. NO. 27 OF 2016 DATED 03.05.2018 BY THE GRAMA NYAYALAYA, KOLENCHERY.** **ANNEXURE P2 TRUE COPY OF THE FIR NO. 1012 OF 2017 OF ERNAKULAM TOWN NORTH POLICE STATION.** **ANNEXURE P2 A TRUE COPY OF THE FINAL REPORT FILED BY THE POLICE IN FIR NO. 1012 OF 2017.** **ANNEXURE P3 CERTIFIED COPY OF THE FIR NO. 989 OF 2017 OF ERNAKULAM TOWN NORTH POLICE STATION.** **ANNEXURE P3 A CERTIFIEDC COPY OF THE FINAL REPORT FILED BY THE POLICE IN FIR NO. 989/2017.** **ANNEXURE P4 TRUE COPY OF THE HABEAS CORPUS PETITION FILED BY THE 2ND RESPONDENT BEFORE THIS HONOURABLE COURT W.P.CRL.NO.217 OF 2017.** **ANNEXURE P4(A) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT THEREIN, HUSBAND OF THE 2ND RESPONDENT, IN W.P.CRL.NO.217 OF 2017. ANNEXURE P4 (B) TRUE COPY OF THE ORDER DATED 19.06.2017 BY THE DIVISION BENCH OF THIS HONOURABLE COURT IN W.P.CRL.NO.217 OF 2017.** **ANNEXURE P5 TRUE COPY OF THE DEPOSITINO MADE BY ASHISH SARA B ALEX, DAUGHTER OF THE 2ND RESPONDENT, BEFORE THE GRAMA NYAYALAYA, KOLENCHERY IN M.C.NO.27 OF 2016.** **ANNEXURE P6 TRUE COPY OF THE PETITION IN I.A.NO.1823 OF 2017 IN G.O.P.556 OF 2017 FILED BY THE 2ND RESPONDENT BEORE THE FAMILY COURT ERNAKULAM. ANNEXURE P6(A) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE HUSBAND OF THE 2ND RESPONDENT IN I.A.NO.1823 OF 2017 IN G.O.P.556 OF 2017 BEFORE THE FAMILY COURT ERNAKULAM. ANNEXURE P7 TRUE COPY OF THE REVIEW PETITION FILED BY** **Crl.MC.No. 5611 of 2018** **14** **THE HUSBAND OF THE 2ND RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM TO REVIEW THE ORDER DATED 10.05.2017 IN I.A.NO.1823 OF 2017 IN G.O.P.556 OF 2017 NUMBERED AS I.A.NO.2311 OF 2017. ANNEXURE P7 (A) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT BEFORE THE FAMILY COURT ERNAKULAM IN I.A.NO.2311 OF 2017. ANNEXURE P8 TRUE COPY OF THE EXPUNGE PETITION FILED BY THE HUSBAND OF THE 2ND RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM TO EXPUNGE THE ORDER DATED 10.05.2017 IN I.A.NO.1823 OF 2017 IN G.O.P.556 OF 2017 NUMBERED AS I.A.NO.367 OF 2018. ANNEXURE P9 TRUE COPY OF THE B-DIARY PROCEEDINGS OF I.A.NO.1823 OF 2017 IN G.O.P.556 OF 2017 AND I.A.NO.2311 OF 2017 IN G.O.P.556 OF 2017 OF THE FAMILY COURT, ERNAKULAM.** **RESPONDENT'S/S EXHIBITS: ANNEXURE R2(A) TRUE COPY OF THE ORDER DATED 10.05.2017 IN I.A.NO.1823/2017 IN O.P.NO.556/2017 OF FAMILY COURT, ERNAKULAM. ANNEXURE R2(B) TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT IN M.C.NO.27/2016 BEFORE GRAMA NYAYALAYA, KOLENCHERY.** **//TRUE COPY//** **P.A.TO JUDGE** **Crl.MC.No. 5611 of 2018 15**