Crl.M.C No.5867 of 2021

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 CRL.MC NO. 5867 OF 2021 CRIME NO.198/2021 OF PUNALUR POLICE STATION ``` ## `- PETITIONER/2ND ACCUSED :` ``` DR. K.T. THOMAS, AGED 70 YEARS DIRECTOR, ST. THOMAS HOSPITAL, NATIONAL HIGHWAYS 208, NEAR SUSPENSION BRIDGE, SIVANKOVIL ROAD, PUNALUR, KERALA 690 305. ``` ``` BY ADVS. S.S.RAJESH V.P.REMESH P.VIJAYA BHANU (SR.) ``` ## `- RESPONDENT/COMPLAINANT/STATE :` ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031. 2STATION HOUSE OFFICER, PUNALUR POLICE STATION, PUNALUR, KOLLAM 691 305. *3ADDITIONAL R3 IS IMPLEADED : MANU BHARGAVAN, S/O BHARGAVAN, KILIKKALAYIL VEEDU,PADUKOYTTUKKAL, THEKKEKKARA, PANTHALAM,PATHANAMTHITTA DISTRICT -686582 ``` **==> picture [369 x 8] intentionally omitted <==** ``` 21.12.2021 IN CRL.M.A.NO.1/2021 IN CRL.M.C.NO.5867/2021. ``` ``` SRI MP PRASHANTH, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C No.5867 of 2021 2 ## **RAJA VIJAYARAGHAVAN V, J.** **------------------------------------Crl.M.C No.5867 of 2021** **------------------------------------------Dated this the 6th day of June, 2023** ## **ORDER** The petitioner has approached this Court seeking to quash all further proceedings in Crime No.198 of 2021 of the Punalur Police Station. In the aforesaid case, the petitioner herein has been arrayed as the 2nd accused. The offence alleged is under Section 468, 471 r/w Section 34 of the IPC. 2. The crux of the prosecution allegation as is borne out from Annexure-I FIR, is that the wife of the de facto complainant - Mrs.Manila Mohan, was working in the St.Thomas Hospital run by the petitioner for the period from 05.05.2017 to 30.08.2018 as a staff nurse. It is alleged that the petitioner issued an experience certificate giving false details in order to enable the first accused to secure a job in Ireland. The records would reveal that the FIR was registered on 07.02.2021 based on the complaint lodged by the party respondent herein. 3. Sri.P.Vijayabhanu, the learned Senior counsel appearing for the petitioner, submits that there is no truth in the allegations. According to the learned counsel, the wife of the de facto complainant had, in fact, worked in the hospital run by the petitioner herein. During the period in question, as Crl.M.C No.5867 of 2021 3 the petitioner was satisfied with her work, he issued an experience certificate on 31.08.2018. He would contend that the complaint was lodged by the de facto complainant only for the purposes of harassment of his wife and also the petitioner herein, who is a septuagenarian. The learned Senior counsel would submit that the petitioner is a practicing doctor who has been rendering service for over 5 decades. At any rate, the learned counsel submits the offence under Sections 468 and 471 will not be attracted against the petitioner. Finally, the learned Senior counsel would refer to Annexure-III to VII and it was urged that those documents would reveal that the assertions made by the complainant are without basis. 4. It is submitted by the learned Public Prosecutor in order to get the details with regard to the appointment of the first accused and also to get the copy of the certificate issued by the petitioner herein, a request was sent by the investigating officer to the hospital in Ireland, where the wife of the de facto complainant had allegedly secured a job. It is submitted that despite repeated reminders, the officers of the hospital in which the first accused had secured a job have not responded. It is also stated that the original experience certificate, which was issued by the petitioner herein to the first accused, has also not been seized. As the seizure of the original experience certificate allegedly given by the petitioner is required and as the Crl.M.C No.5867 of 2021 4 investigating officer felt that it is not possible to obtain the certificate without delay, a UN report was prepared and submitted before the Judicial First Class Magistrate – II, Punalur on 15.12.2022. Though notice was issued to the party respondent and the same was served, there is no appearance. 5. I have considered the submissions advanced. The specific allegation against the petitioner herein is that the wife of the de facto complainant, Mrs.Manila Mohan, had worked in the hospital run by the petitioner for a specified period. The de facto complainant, who is the husband, alleges that the petitioner herein had issued a false experience certificate in order to enable the 1st accused to secure a job overseas. The petitioner asserts that the certificate issued by him is genuine and it truly reflects the service rendered by the wife in his hospital. I find that, though the crime was registered on 07.02.2021, the investigation has come to a standstill as the investigating officer, despite attempts, has not been able to seize the original of the alleged experience certificate which the first accused has submitted to the hospital in Ireland to gain employment. From the report of the investigating officer, it is borne out that the prospects of obtaining the certificate are remote. It is in the said circumstances that a UN Report was submitted before the Court informing that on obtaining further Crl.M.C No.5867 of 2021 5 ## evidence, the matter can be reopened. 6. The petitioner has produced Annexure III copy of the registration Certificate issued to the hospital by the local authority, Annexure IV copy of the resume of the 1st accused, Annexure V appointment letter, Annexure VI attendance register and Annexure VII experience certificate to substantiate that the allegations levelled are all false and baseless. From the report of the investigating officer, it appears that it has not been possible for him to obtain a copy of the experience certificate allegedly issued by the petitioner to the 2nd accused. It was in the said circumstances that a UN report was submitted before the court. Having considered the submissions and having gone through the records, I am of the considered opinion that the continuance of proceedings as against the petitioner is an abuse of process. Though a UN report has been submitted by the investigating officer before the learned magistrate, the fact remains that the criminal proceedings have not come to a complete end insofar as the petitioner is concerned. Having considered the entire facts and after going through the records, I have no doubt in my mind that the lodging of the complaint is consequent to matrimonial discord between the de facto complainant and his wife and the intention of the party respondent is only to vex the wife and also the petitioner. Crl.M.C No.5867 of 2021 6 7. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offenses to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **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 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. 1 [1992 Supp (1) SCC 335 Crl.M.C No.5867 of 2021 7 - (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 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. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of Crl.M.C No.5867 of 2021 8 the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 8. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under section 482 of the Code to quash the criminal proceedings against the petitioner. In that view of the matter, all further proceedings in Crime No.198 of 2021 of the Punalur Police Station and also the UN report submitted by the Station House Officer, Punalur Police Station on 15.12.2022 will stand quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** SMA Crl.M.C No.5867 of 2021 9 ## `APPENDIX OF CRL.MC 5867/2021` ## `PETITIONER ANNEXURES :` |`Annexure`|`1`|`TRUE COPY OF THE FIR IN CRIME NO. 198/2021 OF`| |---|---|---| |||`PUNALUR POLICE STATION.`| |`Annexure`|`VII`|`TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED`| |||`31/08/2018 ISSUED TO THE IST ACCUSED WIFE OF`| |||`THE DEFACTO COMPLAINANT BY THE PETITIONER/.`| |||`2ND ACCUSED.`| |`Annexure`|`II`|`TRUE COPY OF THE ORDER IN BA NO. 2037 DATED`| |||`03/03/2021 OF THE HONOURABLE HIGH COURT OF`| |||`KERALA.`| |`Annexure`|`III`|`TRUE COPY OF THE REGISTRATION CERTIFICATE`| |||`DATED 04/03/2021 ISSUED TO THE PETITIONER's`| |||`HOSPITAL BY THE PUNALUR MUNICIPALITY.`| |`Annexure`|`IV`|`TRUE COPY OF THE RESUME SUBMITTED BY THE IST`| |||`ACCUSED /WIFE OF THE DEFCTO COMPLAINANT TO THE`| |||`PETITIONER.`| |`Annexure`|`V`|`TRUE COPY OF THE APPOINTMENT LETTER ISSUED TO`| |||`THE SIT ACCUSED /WIFE OF THE DEFACTO`| |||`COMPLAINANT BY THE PETITIONER / 2ND ACCUSED`| |||`DATED 03/05/2017.`| |`Annexure`|`VI`|`TRUE COPIES OF THE ATTENDANCE REGISTER FROM`| |||`MAY 2017 1O AUGUST 2018.`|