Dr. Asha P. Nair v. State of Kerala and Surendranath

Crl.M.C.No.5989/2017 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943_ ## _CRL.MC NO. 5989 OF 2017_ _AGAINST THE ORDER/JUDGMENT IN CRMP 200/2017 OF DISTRICT COURT &_ ## _SESSIONS COURT,KOTTAYAM_ ## _PETITIONER/ACCUSED:_ _DR.ASHA P.NAIR, AGED 45 YEARS,W/0.MANOJ.A.T, SANGAMAM HOUSE, NEAR RAILWAY STATION, PADINJATTUMURI, ATHIRAMPUZHA, ETTUMANOOR, KOTTAYAM DISTRICT._ _BY ADVS. SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS_ ## _RESPONDENTS/STATE & COMPLAINANT:_ - _1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031._ _2 DR.SURENDRANATH, AGED 44 YEARS, S/O.SUDHAKARAN, VARANIYIL HOUSE, KOLLADU.P.O,KADUVAKULAM,PANACHIKKADU, KOTTAYAM DISTRICT-686 004._ _BY ADVS.SMT.HASEENA KUNJOONJU SRI.P.R.MADHUSUDANAN_ _PP-SRI.ARAVIND V. MATHEW_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON_ _02.12.2021, THE COURT ON 20.12.2021 PASSED THE FOLLOWING:_ Crl.M.C.No.5989/2017 2 ## **ZIYAD RAHMAN A.A, J.** -------------------------------------------------------Crl.M.C.No.5989 of 2017 ---------------------------------------------Dated this the 20[th] day of December, 2021 ## **O R D E R** The petitioner is the sole accused in S.C.No.271 of 2017 on the file of the Sessions Court, Kottayam. The aforesaid Sessions Case is arising from a private complaint submitted by the 2[nd] respondent herein as evidenced by Annexure-A8 before the Additional Sessions Court, Kottayam. 2. The allegation against the petitioner as contained in the said complaint is as follows: The petitioner as well as the 2[nd] respondent are doctors by profession and were working as Assistant Surgeons in District Hospital, Kottayam. The petitioner belongs to Nair community, whereas the 2[nd] respondent belongs to Scheduled Caste Crl.M.C.No.5989/2017 3 community. The basic allegation in the said complaint was that, the petitioner herein used to harass the 2[nd] respondent, in the presence of patients and other staff, by calling his caste name. The 2[nd] respondent specifically referred to certain incidents alleged to have occurred during the period between 10.03.2015 to 10.10.2015. Apart from the above, the petitioner used to spread water on the chair used by the 2[nd] respondent for purifying the same by stating that the chair was used by the persons belonging to Scheduled Caste community. Several similar incidents were highlighted by the 2[nd] respondent in his complaint. 3. The Sessions Court, Kottayam as per Annexure-A9 order, taken cognizance of the offences punishable under Sections 3(1) (r) and 3(1) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as SC ST Act) and summons was issued to the petitioner herein. Crl.M.C.No.5989/2017 4 4. The petitioner has filed this Crl.M.C. seeking to quash all further proceedings in SC.No.271 of 2017, in which cognizance of the aforesaid offences were taken. 5. Before coming to the question of challenge against the aforesaid proceedings, the factual background of the case has to be taken into consideration. As mentioned above, the petitioner as well as the 2[nd] respondent are doctors by profession, who were working as Assistant Surgeons in District Hospital, Kottayam. The petitioner submitted Annexure-A1 complaint before the Superintendent of District Hospital, Kottayam on 26.05.2016, raising certain allegations against the petitioner which includes misbehavior on the part of the 2[nd] respondent, with sexual intention. On the basis of the same, the Kottayam West Police registered Crime No.844/2016 against the 2[nd] respondent and Annexure-A2 is the FIR therein. After completing the investigation, a charge sheet was submitted by the police Crl.M.C.No.5989/2017 5 and cognizance of the same was taken by the Judicial First Class Magistrate Court-III, Kottayam as C.C.No.1308 of 2016. The offences alleged against the 2[nd] respondent in the said final report are under Sections 354(A) and 509 of Indian Penal Code. Simultaneously, departmental proceedings were also initiated against the 2[nd] respondent on the basis of the complaint submitted by the petitioner. Annexure-A3 is the Inquiry report submitted by the Inquiry officer as part of the departmental proceedings against the 2[nd] respondent. It is discernible from Annexure-A3 that, during the course of inquiry, 18 witnesses were examined by the inquiry officer and arrived at a specific finding that the complaint raised by the petitioner herein was genuine and disciplinary action was recommended against the 2[nd] respondent. Disciplinary proceedings were initiated against the 2[nd] respondent. Annexure-A3 inquiry report was submitted on 28.06.2016. Crl.M.C.No.5989/2017 6 6. Subsequently, on 10.09.2016 on the basis of the complaint submitted by the 2[nd] respondent alleging offences punishable under Section 3(1)(r) and 3(1)(s) of SC ST Act. Annexure-A6 FIR numbered as Crime No.1305/2016 was registered by the Kottayam West Police Station. The allegation in the said complaint was relating to certain incidents of calling the 2[nd] respondent by his caste name in front of his patients. The police conducted a detailed investigation on the basis of Annexure-A6 and Annexure-A7 final report was submitted, arriving at a categorical finding that the complaint of the 2[nd] respondent is a false one and accordingly it was referred as a false case. Annexure-A7 indicates that, before going into the said conclusion, statements of 42 witnesses were recorded by the police. Out of which, only two witnesses supported the version of the 2[nd] respondent. The police had stated specific reasons in Annexure-A7 final report that the aforesaid witnesses, i.e, Crl.M.C.No.5989/2017 7 CW19 and CW20, who gave evidence in favour of the 2[nd] respondent, cannot be believed as the said statements are contradictory with the statements of the other witnesses in material particulars. Annexure-A8 complaint, which is the subject matter of challenge in this petition, is submitted by the 2[nd] respondent herein, as a protest complaint to the final report submitted by the police as Annexure-A7. It was in this circumstances, Annexure-A9 order was passed by the learned Sessions Judge and a challenge against the entire proceedings has been raised by the petitioner herein before this Court. 7. Heard Sri.Roshan D.Alexander, learned counsel for the petitioner, Sri.P.R.Madhusoodhanan, learned counsel for the 2[nd] respondent and Sri.Aravind V. Mathew, learned Public Prosecutor for the State. 8. The specific case of the learned counsel for the petitioner is that, the entire allegations raised by the 2[nd] Crl.M.C.No.5989/2017 8 respondent are with malafide intention and only as a counter blast to the proceedings initiated against the 2[nd] respondent herein by way of criminal complaint as well as departmental proceedings. It is specifically pointed out that the complaint against the 2[nd] respondent was submitted by the petitioner as evidenced by Annexure-A1 before the Superintendent of District Hospital, Kottayam on 26.05.2016. The FIR was registered on 16.06.2016 by the Kottayam West Police Station against the 2[nd] respondent on the basis of a complaint submitted by the petitioner herein. Acting upon the complaint submitted as Annexure-A1, an inquiry was conducted by the Superintendent of District Hospital, Kottayam and the Inquiry report was submitted on 28.06.2016. The complaint with respect to the allegations against the petitioner herein was submitted by the 2[nd] respondent on 10.09.2016 as evidenced by Annexure-A6. It is pointed out that there is absolutely no explanation for the Crl.M.C.No.5989/2017 9 delay in the complaint of the 2[nd] respondent. It is also contended that the police had conducted an extensive investigation on the basis of Annexure-A6 FIR and found that the complaint made by the 2[nd] respondent as against the petitioner was false. Annexure-A7 final report contained details of such investigation which would indicate the recording of statements of 42 witnesses. The protest complaint filed by the petitioner was accepted by the learned Sessions Court and cognizance of the offence was taken on the basis of the same, as per Annexure-A9 order. It is pointed out that, despite the fact that the petitioner could not highlight any manifest error or discrepancy in the investigation conducted by the police, the learned Sessions Court has taken cognizance of the same. It is pointed out that, in the light of the categorical conclusions made by the police after a detailed investigation, the Sessions Court could not have taken cognizance of the offence on the basis of the Crl.M.C.No.5989/2017 10 protest complaint, unless it is shown that a manifest error or manifest miscarriage of justice has occurred or there existed exceptional circumstances which requires the consideration of new facts brought out by the complainant, which the complainant had no previous knowledge or he was unable to produce, despite exercise of due diligence in the previous proceedings. In support the said contention, the learned counsel for the petitioner relies on the judgment in **Parameswaran Nair v. Surendran and Another [2009(1) KLT 794]** . 9. On the other hand, the learned counsel appearing for the 2[nd] respondent contends that the question whether the allegations made in Annexure-A8 complaint are valid or not, is a matter of evidence. A proceeding on the complaint which contain serious allegations against the petitioner herein, cannot be considered under Section 482 Cr.P.C. He Crl.M.C.No.5989/2017 11 relies on the judgment in **Alex and Others v. State of Kerala and Another [2007 (1)KHC 1023]** . 10. The crucial question that arises is as to whether Annexure-A9 order is legally sustainable and as to whether the proceedings initiated against the petitioner herein by way of S.C.No.271 of 2017 by the Sessions Court, Kottayam is legally sustainable or not, in the light of the conclusion arrived at by the police as evidenced by Annexure-A7 final report which itself was submitted after an extensive investigation. It is the case of the petitioner that AnnexureA9 order passed by the Sessions Court does not contain any observation or reference as to the findings contained in Annexure-A7 final report. It is pointed out that by virtue of the principles laid down by this Court in **Parameswaran Nair’s case** (supra), it was obligatory for the Sessions Court to examine the contents of Annexure-A7 and to consider the question as to whether the conclusions of the police are Crl.M.C.No.5989/2017 12 having any manifest error or not. The Sessions Court also should have considered the question as to whether Annexure-A8 complaint contains any new facts which were not already considered by the police. While considering the said issue, the observations made by this Court in **Parameswaran Nair’s case** (supra) are very much relevant. In paragraph Nos.16, 17 and 18 in the said judgment, it is observed by this Court in the manner as follows: “16. If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings. The Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses record in that enquiry. Crl.M.C.No.5989/2017 13 17. The well settled legal propositions can be summed up as follows: (1) When a final report is made by an officer of the Police Station under sub Section 2 of Section 173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. (2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report. (3) Magistrate can direct further investigation under sub section 3 of Section 156. Crl.M.C.No.5989/2017 14 (4) Magistrate can take cognizance on the final report itself under Section 190(1)(b) disregarding the opinion of the police and issue summons. (5) Magistrate can take cognizance on the original complaint, where investigation under sub Section 3 of Section 156 was earlier ordered and record the statement of the complainant and the witnesses as provided under Section 200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a police officer or such other officer as provided under Section 202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued. (6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings. 18. When the Magistrate issue notice to the complainant on receipt of the final report and grants Crl.M.C.No.5989/2017 15 opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the police under sub Section 2 of Section 173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under Section 204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new Crl.M.C.No.5989/2017 16 facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings. ” 11. On going through the observations made therein, it is evident that, a protest complaint at the instance of the de facto complainant, in respect of the subject matter which was already investigated by the police would be entertainable by the court, only if there is any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on any new facts or materials which were not in his knowledge or with due diligence could not have brought forward in the previous proceedings. While applying the aforesaid principles in the facts and circumstances of this case, following aspects are revealed. Exhibit.P8 complaint contain very same allegations as contained in the complaint which was the subject matter of Ammexure-A7 final report. Annexure-A8 complaint did not indicate or point out any specific infirmity or manifest error Crl.M.C.No.5989/2017 17 in the conclusions arrived at by the police. On the other hand, the only averment with respect to the contents of Annexure-A7 final report is that, the witnesses were not examined by the police and no proper investigation has been conducted. However, a perusal of Annexure-A7 final report would indicate that 42 witnesses were already examined and detailed discussions are seen made in respect to contents of each and every such witnesses. Apart from the above, the 2[nd] respondent was unable to bring any new materials in Annexure-A8 complaint. Of course, it is true that he has cited certain witnesses in support of the allegations against the petitioner herein but it is discernible from the records that all of them were claimed to be the patients of 2[nd] respondent himself and the veracity of their statements are doubtful in the light of specific evidence collected by the police from 42 witnesses. Crl.M.C.No.5989/2017 18 12. Another crucial aspect in this regard is the delay in submitting the complaint by the 2[nd] respondent. This question assumes more importance because of the fact that, there were criminal proceedings as well as Departmental proceedings going on, as against the 2[nd] respondent, on the basis of a complaint submitted by the petitioner herein. As mentioned above, according to the 2[nd] respondent, the harassment at the instance of the petitioner herein by calling the 2[nd] respondent by his caste name, commenced from March, 2015 on wards, but he waited till September, 2016 for approaching the police. Even though, several proceedings in the form of criminal proceedings as well as departmental enquiry have taken place during this period, against the 2[nd] respondent no counter allegation in the nature as mentioned in Annexure-A8 is not seen raised by the 2[nd] respondent against the petitioner, in any of such proceedings. In Annexure-A8 complaint, the petitioner is not Crl.M.C.No.5989/2017 19 offering any explanation for this enormous delay in approaching the police. When all these aspects are taken into consideration in the background of the specific findings entered into by the police in Annexure-A7 final report, irresistible conclusion possible is that the entire proceedings are as a part of the vengeance of the 2[nd] respondent and are clear abuse of process of court. 13. The contention of the learned counsel for the 2[nd] respondent by placing reliance upon the judgment in **Alex and Others** (supra), is that the genuineness of the allegations raised in Annexure-A8 complaint is a matter of evidence and it is not possible for this Court to consider the veracity of the aforesaid allegations in a proceedings under Section 482 Cr.P.C. As far as the judgment rendered by this Court in **Alex and Others** (supra) is concerned, the question considered therein was relating to quashing of an FIR. On the other hand, the proceedings before me in this case is in Crl.M.C.No.5989/2017 20 relation to a protest complaint submitted after the final report of the police, on the basis of an extensive investigation in this regard. The police had arrived at a categorical finding based on the materials collected during the course of such investigation, and it clearly points out the lack of veracity of the allegations against the petitioner. The facts and circumstances relating to the submission of complaint by the petitioner against the 2[nd] respondent and the proceedings taken thereon by the police as well as the superior officers of the 2[nd] respondent, are matters of relevance, pointing out the malafide intention behind the submission of Annexure-A8 complaint containing allegations against the petitioner herein. It is also a crucial aspect that there is an unexplained delay of about one year in submitting the complaint before the authorities concerned, as to the allegations raised against the petitioner herein. Even going by the documents submitted by the 2[nd] respondent along Crl.M.C.No.5989/2017 21 with the counter affidavit which he has filed in this Crl.M.C, it is discernible that the 1[st] complaint which he has submitted highlighting the allegations against the petitioner was on 10.04.2016, which was before the Superintendent of District Hospital, Kottayam. Even in the said complaint also, no details of any specific instances were mentioned and what is contained therein are general statements regarding some acts of harassment allegedly meted out to him at the instance of the petitioner herein. On the other hand, the complaint which is submitted before the police contained certain specific instances of harassment by the petitioner herein, but the aforesaid allegations are absent in the complaint claimed to have been submitted before the Superintend of Police as evidenced by Annexure R2(a). In my view, lack of any specific materials or allegations in Annexure-R2(a) are very conspicuous in the facts and circumstances of the case and it speaks volumes. 22 Crl.M.C.No.5989/2017 14. In **State of Hariayana v. Ch.Bhajan Lal [(1992) Supp (1) SCC 335]** , the Honourable Supreme Court was pleased to formulate the guidelines for invoking the powers of this Court under Section 482 Cr.P.C, while interfering with the criminal proceedings. Out of the seven guidelines contemplated therein, guideline Nos.5 and 7 are very much relevant in the facts and circumstances of this case. The aforesaid guidelines are as follows: “(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. (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.” 15. In my view, the facts and circumstances as mentioned above would justify the invocation of powers of this Court in the light of the above guidelines. This is Crl.M.C.No.5989/2017 23 because, the facts and circumstances, which ultimately lead the 2[nd] respondent to submit the complaint against the petitioner and the contents of the aforesaid complaint, when considered together would clearly indicate that the allegations against the petitioner are highly improbable and no prudent man can reach a conclusion that, there is sufficient ground in proceeding against the petitioner. Similarly, the malafides behind the submission of this complaint are also very much evident. This is particularly in view of the fact that the complaint was submitted by the 2[nd] respondent much after the initiation of the proceedings by the police and also by the departmental authorities as against the 2[nd] respondent for allegations of sexual assault committed upon the petitioner herein. It is also a relevant aspect to notice that all the allegations of the 2[nd] respondent have been inquired into in depth by the police. Even in Annexure-A8 complaint, apart from mere statement that Crl.M.C.No.5989/2017 24 proper witnesses were not examined, 2[nd] respondent could not point out any specific discrepancy in the conclusion arrived at by the police on the basis of evidence collected by them after examining 42 witnesses. Apart from the above, in Annexure-A8 he could not bring any new materials which he could have produced before the police during the course of investigation. The aforesaid aspect when considered in the light of the principles laid down by this Court in **Paramewaran Nair’s case** (supra) the only conclusion possible is that, further proceedings in Annexure-A8 is a clear abuse of process of court. Even though, the learned Sessions Judge considered the contents of Annexure-A8 complaint and passed Annexure-A9 order, the said order does not contain any observations with regard to the conclusions entered into by the police in Annexure-A7 final report. Crl.M.C.No.5989/2017 25 16. In such circumstances, I have no hesitation to hold that the continuation of further proceedings in Annexure-A8 complaint would amount to an undue harassment to the petitioner herein. The chances of successful prosecution based on Annexure-A8 are also very bleak. In such circumstances, allowing the proceedings to continue would be an unnecessary wastage of precious judicial time and resources. In such circumstances, I am of the view that this is a fit case in which powers of this Court under Section 482 Cr.P.C has to be invoked. Accordingly, this Crl.M.C is allowed and all further proceedings in S.C.No.271 of 2017 on the file of the Sessions Court, Kottayam are hereby quashed. Sd/- **(ZIYAD RAHMAN.A.A, JUDGE)** DG/3.12.21 Crl.M.C.No.5989/2017 26 ## _APPENDIX OF CRL.MC 5989/2017_ _PETITIONER ANNEXURES_ - _ANNEXURE A1 TRUE COPY OF THE COMPLAINT DATED 26.05.2016 FILED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF DISTRICT HISPITAL OF KOTTAYAM_ - _ANNEXURE A2 TRUE COPY OF THE FIR LODGED IN CR.NO.844/2016 OF KOTTAYAM POLICE STATION DATED 16.06.2016 ALONG WITH A TYPED COPY OF FIS_ - _ANNEXURE A3 TRUE COPY OF THE ENQUIRY REPORT DATED 28.06.2016 TAKEN UNDER THE RIGHT TO INFORMATIONA ACT_ - _ANNEXURE A4 TRUE COPY OF THE INFORMATION SUPPLIED UNDER RIGHT TO INFORMATION ACT DATED 02.11.2016_ - _ANNEXURE A5 TRUE COPY OF THE COMMUNICATION DATED 05.12.2016,DIRECTORATE OIF HEALTH SERVICE_ - _ANNEXURE A6 TRUE COPY OF FIR IN CR.NO.1305/2016 DATED 10.09.2016_ - _ANNEXURE A7 TRUE COPY OF THE REFER REPORT IN CR.NO.1305/2016 DATED 15/01/2017_ - _ANNEXURE A8 TRUE COPY OF THE PROTEST COMPLAINT DATED 30.01.2017_ - _ANNEXURE A9 TRUE COPY OF THE ORDER DATED 31.05.2017 IN CRL.M.P.NO.200/2017 ON THE FILES OF THE SESSIONS COURT,KOTTAYAM_ - _ANNEXURE A10 TRUE COPY OF THE SUMMONS ISSUED TO THE PETITIONER._