Crl.M.C.No. 7651 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940** ## **Crl.MC.No. 7651 of 2015** **AGAINST THE ORDER/JUDGMENT IN CRRP 963/2015 of HIGH COURT OF KERALA** **AGAINST THE ORDER IN SC 719/2012 of ADDL.SUB COURT,KOLLAM** ## **PETITIONERS/ACCUSED NO.1 AND 2:** - **1 PREMSHAD AGED 30 YEARS S/O.NAZEER, ALAFALAH, KUZHIYILMUKKU, MARKET ROAD, ATTINGAL.** - **2 SHAHEER** **AGED 30 YEARS S/O.ABDUL WAHAD, SS COTTAGE, ALAMCODE, THIRUVANANTHAPURAM.** **BY ADVS. SRI.A.RAJASIMHAN SRI.K.NIRMALAN** ## **RESPONDENTS/COMPLAINANT AND STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA.** - **2 VIBINA WAHID AGED 25 YEARS** - **D/O.RAHIYA BEEVI, SUBAH, VELAMKONAM, AVANAVANCHERY, ATTINGAL, THIRUVANANTHAPURAM.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 3.10.2018, THE COURT ON 29.11.2018 PASSED THE FOLLOWING:** **Crl.MC.No. 7651 of 2015** **2** ## **ORDER** The petitioners who are the accused in S.C.No. 719/2012 before the Additional Assistant Sessions Court, Kollam have come up with this petition under Section 482 of the Code of Criminal Procedure to quash the Final Report filed against them. 2. The relevant facts that emerge from the record is that on 9.12.2010 the first accused/first petitioner has approached the family of the de facto complainant with a marriage proposal to marry the de facto complainant. The de facto complainant and her family members refused to accept the proposal. Therefore he was entertaining enmity towards them. So with the intention to destroy her life, he along with the second accused who is his friend, in furtherance of their common intention on 9.12.2010 at about 5.45 p.m. had kidnapped the de facto complainant while she was returning to her hostel where she was accommodated after her class in T.K.M Institute of Management. They followed her in a car and dragged her into the vehicle driven by the second accused/2[nd] petitioner and they threatened her with dire consequences and took her to different places and later **Crl.MC.No. 7651 of 2015** **3** abandoned her near the public road at Pangode and thereby committed the offences punishable under sections 366, 323, and 34 of the Indian penal Code. 3. The records would reveal that the learned Additional Sessions Judge on 9.7.2015 had framed charge against the petitioners. But the petitioners have approached this Court with Crl.R.P.No.963/2015 to quash the charge framed against them alleging that the court had mechanically framed the charge against them. They have also sought for a discharge on the ground that there is no case against them so as to face trial before the court. A learned Single Judge of this Court by an order dated 2.9.2015 set aside the charge framed by the trial court on 9.7.2015 and directed to frame proper charge and also to verify the materials before the court and examine whether they are entitled for a discharge. The relevant portion of the said order reads as follows: “In the result, the Criminal Revision Petition is disposed of as follows: a) The charge framed by the court below on 09.07.2015 is set aside. b) The trial court is directed to frame a proper charge according to law, having in mind the provisions contained in **Crl.MC.No. 7651 of 2015** **4** Sections 211 to 214 Cr.P.C. If it is found that they are not entitled for discharge. c)If the petitioners plea for discharge, or if application for discharge is filed, it shall be judiciously considered by the trial court, and judicious decisions shall be taken on a consideration of all the materials furnished by the prosecution. d) If a proper charge is framed, and if the petitioners are aggrieved by the charge, they can approach this Court for appropriate relief. e) All the materials shall be considered, and examined by the trial court in taking decision on the plea for discharge, if made by the accused. The Trial court will take appropriate decision on the question of charge within three months. If any of the petitioners seek exemption from personal appearance, the said request also shall be considered by the trial court. The Registry shall forward a copy of the impugned charge to the Kerala Judicial Academy for necessary action.” 4. Thereafter, the petitioners have filed Crl.M.P No.293/2015 before the trial court under Section 227 of the Code of Criminal Procedure seeking discharge. The said petition was dismissed by the learned trial Judge by an order dated 1.12.2015. Thereafter, this petition has been filed under Section 482 of the Code of Criminal Procedure to quash the final report filed against them. 5. It is the case of the petitioners that the allegations leveled against them will not constitute the alleged offences and **Crl.MC.No. 7651 of 2015** **5** proceeding against them on the basis of Annexure A3 will be an abuse of process of court and therefore it will result in gross miscarriage of justice. The learned public prosecutor on the other hand, supported the prosecution case and argued that there are materials against the petitioners to go for a trial and the petition is devoid of merits and therefore liable to be dismissed 6. I have heard the learned counsel for the petitioners and the learned public prosecutor . 7. The proposition of law pertaining to the statutory power under Section 482 of Code of Criminal Procedure is well settled that, it cannot be exercised as a matter of course but it has to be exercised judiciously, sparingly with great caution and care, to prevent abuse of process of the court and to secure the ends of justice. Only if it is convinced that no useful purpose will be served by allowing a criminal prosecution to continue, the court can quash the proceedings at a preliminary stage. 8. Bearing in mind the legal proposition of law as enunciated in _**Gian Singh v. State of Punjab and Another [(2012) 10 SCC 303], Narinder Singh and Others v. State of Punjab and Another [(2014) 6 SCC 466], Parbatbhai**_ **Crl.MC.No. 7651 of 2015** **6** ## _**Aahir alias Parbatbhai Bhimsinhbhai Karmur and others v.**_ _**State of Gujarat and another (2018)1 SCC (Cr)1**_ etc whether the case on hand persuade this Court to exercise its power under Section 482 Cr.P.C, is the question to be looked into. 9. At this stage it is not necessary to verify whether the prosecution will able to prove the guilt against the petitioners. In fact, a close scrutiny of the record makes it clear that there is no valid reason to apply the parameters governing section 482 Cr.P.C. so as to quash the entire proceedings before the trial court on the basis of Annexure A3 final report in the interest of justice. In the present case the revision petition filed against framing of charge under Section 366 and 323 read with Section 34 of IPC was set aside by the court and direction was given to frame fresh charge based on the materials on record . The trial court has dismissed the petition for discharge of the accused. That would indicate that there is a prima facie case. The intention of the accused is the basis for an offence under Section 366 IPC . In view of the aforesaid, the trial court has to comply with the direction of this Court in Crl.R.P.No.963/2015 and frame proper charge against the petitioners as expeditiously as **Crl.MC.No. 7651 of 2015** **7** possible without much delay. Accordingly, I find that this petition is without any substance and hence, liable to be dismissed and is hereby dismissed. Sd/- **SHIRCY V JUDGE** smm **Crl.MC.No. 7651 of 2015** **8** ## **APPENDIX** ## **PETITIONER'S/S ANNEXURES:** **ANNEXURE A1 ANNEXURE A1 : TRUE COPY OF THE MARRIAGE CERTIFICATE DT 22-7-2015. ANNEXURE A2 ANNEXURE A2 : TRUE COPY OF THE FIR IN CRIME NO.1260 OF 2010 OF KILIKOLLOOR POLICE STATION ANNEXURE A3 ANNEXURE A3 : CERTIFIED COPY OF THE CHARGE SHEET IN SC NO.719/2012 OF THE ADDITIONAL ASSISTANT SESSIONS COURT, KOLLAM. ANNEXURE A4 ANNEXURE A4 : TRUE COPY OF THE COURT CHARGE IN SC NO.719/2012 OF THE ADDITIONAL ASSISTANT SESSIONS COURT, KOLLAM. ANNEXURE A5 ANNEXURE A5 : TRUE COPY OF THE ORDER IN CRL.R.P.NO.963 OF 2015 DT 2-9-2015. ANNEXURE A6 ANNEXURE A6 : TRUE COPY OF CRL.M.P.NO.273 OF 2015 FILED BEFORE THE ADDITIONAL ASSISTANT SESSIONS COURT, KOLLAM. ANNEXURE A7 COPY OF THE ORDER IN CRL.M.P.NO.293/15 IN SC. NO.712/2012 OF ADDITIONAL SESSIONS COURT, KOLLAM**