Dr. Muhammed Majeed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932** ## **Crl.MC.No. 3766 of 2010()** **--------------------------------------** ## **CP.19/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM** **....................** ## **PETITIONER(S): ACCUSED** **--------------------------------------** **DR.MUHAMMED MAJEED, S/O.MOHAMMED KUNJU, AGED 63 YEARS, SAMI LABS LIMITED, 19/1 & 19/2, 1 MAIN, II PHASE, PEENYA INDUSTRIAL AREA, BANGALORE-560 058.** **BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE BY ADV. SRI.S.K.PREMRAJ SRI.C.S.MANU** ## **RESPONDENT(S): STATE** **------------------------------------** **STATE OF KERALA REPRESENTED BY THE ASSISTANT COMMISSIONER OF POLICE, (CRIME DETACHMENT), KOCHI.** ## ***ADDL. R2 IMPLEADED.** **2. ROUSHINA W/O. K.U.NIYAS, AGED 23 YEARS, EARLIER RESIDING AT PURAKKULATH, BOSE NAGAR, ELAMKULAM, KOCHI 682 020** **AND NOW RESIDING AT F-I. SUNSHINE WALKUPS, TAGORE KADAVANTHRA, KOCHI 682 020.** - ***ADDL. R2 IS IMPLEADED VIDE ORDER DT.D 27.9.2010 IN CRL.MA. 5880/2010.** **PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **THOMAS P. JOSEPH, J. -------------------------------------Crl.M.C. No.3766 of 2010 -------------------------------------Dated this the 1[st] day of March, 2011.** ## **ORDER** Petitioner is the sole accused in C.P.No.19 of 2009 of the court of learned Judicial First Class Magistrate-II, Ernakulam facing trial for offence punishable under Section 376 of the Indian Penal Code. He seeks to quash proceeding against him on the ground that Annexure-A8, final report is illegal, improper and irregular and thus rendering it liable to be quashed and that the final report does not give rise to any cause of action for prosecuting petitioner even if the allegations are accepted in toto. According to the petitioner, criminal proceedings are manifestly attended with malafides with an ulterior motive to wrecking vengeance on petitioner. 2. The proceeding arose on a complaint (Annexure-A1) preferred by the defacto complainant, a lady then aged about 20 years before the learned Judicial First Class Magistrate-II, Ernakulam (C.M.P.No.3700 of 2007). In that complaint, (complaint dated 20.09.2007) she alleged that petitioner and accused Nos.2 and 4 (there were altogether five accused in Annexure-A1, complaint of whom learned Senior Advocate tells me that accused Nos.2 to 5 have been deleted from the array of accused) approached the mother of defacto complainant through one Razak and told her that petitioner is desirous of marrying the defacto complainant. It is alleged that disregarding objection of the **Crl.MC No.3766/2010** 2 defacto complainant, petitioner came to her house to see her (in connection with the proposal for marriage). She was in love with CW17 with whom she had contracted a register marriage. She expressed unwillingness to marry petitioner. On 01.11.2006 at about 11 a.m. petitioner and accused No.2 (in the complaint) came to her house in a car and under pretext that her mother is in their flat took her to the flat of petitioner. She alleged that in the flat of petitioner that day petitioner subjected her to forcible sexual intercourse. She cried out. Petitioner offered to marry her after his daughter's marriage is performed. Petitioner also threatened her not to disclose the incident to anybody. Scared, defacto complainant did not disclose that incident to anybody. Sometime in December, 2006 petitioner again came to her house, told her that they are obliged before Allah, put a gold chain on her neck and said that it could be treated as the thali chain and assured her that 1/8[th] share of his large assets belonged to her. She believed the words of petitioner. She was subjected to sexual intercourse in his flat on 10.03.2007 and 09.04.2007. She stated in the complaint that she believed the words of petitioner that he would marry her. On 04.06.2007, it is alleged, petitioner attempted to commit rape on her younger sister. Petitioner then told her mother that let the defacto complainant and her younger sister be given in marriage to him. Petitioner told her that herself and family are under the surveillance of his gundas since 04.06.2007 onwards. As she was scared, she could not file complaint to the Police. Hence Annexure-A1 as above stated. That complaint was forwarded to the Kadavanthra Police for investigation under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). **Crl.MC No.3766/2010** 3 Annexure-A2 is the FIR in Crime No.335 of 2007 registered against petitioner and others for offences punishable under Sections 376, 377, 354, 506(ii) and 511 of Section 376 read with Section 34 of the Indian Penal Code(for short, “the IPC”). The Assistant Commissioner of Police, Ernakulam conducted investigation and submitted Annexure-A8, final report alleging that petitioner committed offences punishable under Sections 376, 377, 354, 506(ii) and 511 of Section 376 of the IPC, citing 31 witnesses for the prosecution. Even before defacto complainant filed Annexure-A1, complaint petitioner had lodged Annexure-A3, complaint before the Inspector General of Police, Ernakulam alleging that the defacto complainant and others are blackmailing him demanding Rupees two crores and committed offences punishable under Sections 384, 385, 506 and 511 read with Sections 120B and 34 of the IPC. Based on that complaint the Central Police, Ernakulam registered Crime No.1298 of 2007 for offences punishable under Sections 384, 385, 506 and 511 read with Section 120B and 34 of the IPC against defacto complainant and others (Annexure-A4 is the FIR). In the meantime, petitioner filed a complaint to the Director General of Police seeking proper investigation of the case against him. The Director General of Police directed another Assistant Commissioner to look into th matter. That officer after conducting investigation submitted Annexure-A10, report concurring with the investigation already conducted by the Assistant Commissioner in the case against petitioner. Learned Senior Advocate appearing for petitioner has contended that filing of the complaint against petitioner comes only after petitioner preferred a complaint against defacto complainant and others, filing **Crl.MC No.3766/2010** 4 of the complaint is actuated with malafides and that the allegations are wholly incorrect. Learned Senior Advocate contended that when the complaint itself is actuated by malafides and is wholly unreliable and unbelievable it is within the power of this Court to quash the proceeding under Section 482 of the Code. Reliance is placed on the Supreme Court decision in **State of Haryana and** **others v. Ch.Bhajan Lal and others (AIR 1992 SC 604)** and in particular, paragraph 108(1) and (7). It is contended that petitioner is a wellknown scientist placed in high position and that attempt of defacto complainant is only to blackmail him and extract money. In the circumstances it is prayed that Annexures-A1, A2 and A8, complaint, FIR and final report against petitioner may be quashed. 3. Learned Public Prosecutor submitted that thorough investigation was conducted by the Assistant Commissioner who submitted final report (Annexure-A8), all relevant witnesses were questioned and their statements recorded. According to the learned Public Prosecutor the mere fact that petitioner had prior in point of time preferred Annexure-A3, complaint to the Police does not mean that version of the defacto complainant has to be viewed with distrust. It is submitted by learned Public Prosecutor that complaint preferred by the petitioner resulted in a refer report. According to the learned Public Prosecutor, merely based on the social status of petitioner version of defacto complainant cannot be doubted. The matter requires trial and recording of evidence. It is argued that this is not a fit case where this Court could interfere under Section 482 of the Code as if the allegations are totally false or **Crl.MC No.3766/2010** 5 inherently improbable. 4. The decision of the Supreme Court in **State of Haryana v. Bhajan Lal** (supra) in paragraph 108(1) and (7) say that where the allegations made in the FIR 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 or that the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the accused and where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive or wreaking vengeance on the accused and with a view to spite him due to private and personal grudge it is within the power of the High Court to act under Section 482 of the Code and quash the proceedings. My endeavour in this case is to find whether in the circumstances proceeding against petitioner could be quashed without directing him to face the trial. 5. I stated the circumstances highlighted by learned Senior Advocate appearing for petitioner such as petitioner filing a complaint to the Inspector General of Police against the defacto complainant and others even before the defacto complainant preferred Annexure-A1, complaint. No doubt, that complaint was preferred first in point of time to Annexure-A1, complaint preferred by the defacto complainant. But it is not as if the defacto complainant is without answer for the delay in filing Annexure-A1, complaint. She has stated in the complaint about the promises or assurances petitioner had given to her **Crl.MC No.3766/2010** 6 after the first incident of rape followed by alleged threat to her family which the Investigating Agency has found prima facie acceptable. .Annexure-A8, final report includes offence punishable under Section 506(ii) of the IPC as well. Yet another circumstance that the learned Senior Advocate has pointed out is that though it is a case of defacto complainant that due to the first act of sexual intercourse between herself and petitioner which according to her was without her consent the bed sheet on the coat was spilled with blood, learned Sessions Judge while considering the application for anticipatory bail preferred by petitioner has noted from the case diary that a certificate issued from the Medical Trust Hospital, Ernakulam stated that defacto complainant had undergone medical termination of pregnancy about a month prior to the alleged rape on 01.11.2006. A further circumstance which learned Senior Advocate has highlighted is that though according to the defacto complainant she had a love affair with CW17 with whom she had contracted a register marriage and CW17 is cited to prove that, it would appear that CW17 was not even questioned by the Investigating Agency. It is pointed out by the learned Senior Advocate and it is not controverted by the learned Public Prosecutor also that according to the Investigating Agency CW17 could not be questioned since he was in Gulf. Learned Senior Advocate would argue how then it was possible for the Investigating Agency to state in the memo of evidence against CW17 as to what CW17 was expected to speak in favour of the prosecution. 6. I have gone through Annexure-A8, final report and the memo of evidence appended to it where CW17 is cited to prove that he had married the **Crl.MC No.3766/2010** 7 defacto complainant on 10.04.2006 as per the Special Marriage Act. But, it is not as if CW17 is the only witness to prove that alleged marriage. The defacto complainant herself is competent to speak about the same and may also be competent to prove the document relating to the alleged marriage. Consequence of absence of statement of CW17 recorded by the Investigating Agency under Section 161 if the Code assuming that CW17 spoke in favour of the prosecution is a matter which the trial court has to decide. 7. Yet another argument learned Senior Advocate raised is based on the certificate said to be issued from the Medical Trust Hospital, Ernakulam and considered by the learned Sessions Judge while granting anticipatory bail to the petitioner. Assuming that there is such a medical certificate it only revealed that the defacto complainant was not virgin on the alleged date of rape on 01.11.2006. I do not find any statement in Annexure-A1, complaint that she was a virgin as on the date of the alleged incident (01.11.2006). From the mere fact that according to her, after the incident she found blood spilled on the bed sheet I am unable to infer at this stage that according to her she was a virgin then and at any rate, that would prove fatal to the case of prosecution and make the version of defacto complainant absurd or inherently improbable so that interference under Section 482 of the Code is warranted. Assuming that it is proved that defacto complainant had sexual intercourse (with any other person) before 01.11.2006 in what way that would affect evidence of the defacto complainant is also a matter which the trial court has to decide. 8. I have gone through Annexure-A8, final report and the memo of **Crl.MC No.3766/2010** 8 evidence. It is the case of defacto complainant that she was subjected to forcible sexual intercourse on 01.11.2006 and later, on a false assurance of marriage and threat, in the flats of petitioner either at Ernakulam or at Bangalore and to support that version of the defacto complainant, Investigating Agency has cited several witnesses. CW16 is cited by the Investigating Officer to prove the mahazar for seizure of the boarding pass used by the defacto complainant and others to go to Bangalore on the relevant day. 9. I have referred to the materials on record to consider whether as stated in paragraph 108(1) and (7) in the decision cited supra it could be said that the allegations are attended with malafides or are so absurd that no reasonable man could reach such a conclusion. Having regard to the circumstances stated I am unable to say at this stage that the allegations are absurd or so inherently improbable that no reasonable man could believe in its truth and hence the proceeding against petitioner are to be quashed. 10. I also referred to the contention of learned Senior Advocate that though on the request of petitioner the Director General of Police had directed further investigation, that investigation was conducted by an Officer equivalent in rank to the Officer who investigated the case and he submitted Annexure-A10, report concurring with the investigation conducted by the Assistant Commissioner. No inference is possible that since the subsequent investigation was conducted by an Officer equivalent in rank to the Officer who had already conducted the investigation, the report submitted by the subsequent Officer is to be viewed in suspicion. These are matters which petitioner can bring out in the **Crl.MC No.3766/2010** 9 course of trial. I am not inclined to think that these are sufficient grounds to quash proceedings against petitioner invoking power under Section 482 of the Code. 11. Lastly it is argued by the learned Senior Advocate that since this Court is conferred with power under Section 482 of the Code there may be a direction for further investigation of the case by a superior officer in rank to the Assistant Commissioner. Merely because petitioner/accused has some apprehension or grievance against the investigation conducted and final report submitted, the power for further investigation under Section 173(8) of the Code cannot be invoked. True, this Court has power to order further investigation but that power has to be used in exceptional circumstances where it is eminently necessary for the ends of justice. I do not find any such circumstance on the facts of this case to order further investigation. Resultantly this petition fails. It is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**