FRANKLIN WINS.J. v. NIJU and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938** **Crl.MC.No. 4847 of 2016** **-----------------------** **CC 206/2011 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM CRIME NO. 1149/2010 OF MECICAL COLLEGE POLICE STATION , THIRUVANANTHAPURAM** **--------------** **PETITIONER(S)/ACCUSED: ---------------------** **FRANKLIN WINS.J., AGED 30 YEARS, S/O.JOHN VINCENT, MLAKULAM, NORTH STREET, MARTHANDAM.P.O., KANYAKUMARI DISTRICT, TAMILNADU-695575.** **BY ADVS.SRI.C.RAJENDRAN SRI.K.R.RANJITH** **RESPONDENT(S)/COMPLAINANT & STATE : ----------------------------------** **1. NIJU, AGED 27 YEARS, S/O.NESAN, NIJU BHAVAN, OLIKKADAVU, PANNIYODU POST, KATTAKKADA VILLAGE, THIRUVANANTHAPURAM - 695 575.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R2 BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 4847 of 2016 -----------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **-----------------------** |**ANNEXURE-A1:**|<br>**A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.1149/2010**| |---|---| ||**OF THE MEDICAL COLLEGE POLICE STATION,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE-A2:**|<br>**A CERTIFIED COPY OF THE FIR IN CRIME NO.1149/2010**| ||**OF THE MEDICAL COLLEGE POLICE STATION,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE-A3:**|<br>**A TRUE PHOTOCOPY OF THE STATEMENT GIVEN BY CW2**| ||**RAHEESH.**| |**ANNEXURE-A4:**|<br>**A TRUE PHOTOCOPY OF THE STATEMENT GIVEN BY C23**| ||**SATHEESH.**| |**ANNEXURE-A5:**|<br>**A TRUE PHOTOCOPY OF THE STATEMENT GIVEN BY CW4**| ||**VARGHESE.**| |**ANNEXURE-A6:**|<br>**A CERTIFIED COPY OF THE FINAL REPORT IN CRIME**| ||**NO.1149/2010 OF MEDICAL COLLEGE POLICE STATION,**| ||**THIRUVANANTHAPURAM.**| ## **RESPONDENT(S)' ANNEXURE** ## **-----------------------** ## **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** RAJA VIJAYARAGHAVAN V., J. =================== Crl. M.C. No.4847 of 2016 ======================= Dated this the 29[th] day of July, 2016 ## ORDER - 1.The petitioner is the sole accused in C.C. No.206 of 2011 of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. He is charged for having committed offence punishable under Sections 454, and 511 of 380 of IPC. - 2.The prosecution allegation is that on 26.12.2010 at about 8.45 am, the petitioner trespassed into the office of the Pattom Catholic Centre where the defacto complainant works as supervisor and attempted to open the drawer of the table with intent to commit theft. - 3.Heard the learned Counsel appearing for the petitioner and learned Public Prosecutor. - 4.It is submitted that the allegations are absolutely false and concocted. There is a long and unexplained delay in setting the law in motion. The description of the Crl. M.C. No.4847 of 2016 2 person given by the _de facto_ complainant does not match that of the accused. Finally it is submitted that the witnesses are unreliable and their version is unbelievable. It is also submitted that if the version of the prosecution is believed, nothing prevented the persons who were near to the place of occurrence to intercept the petitioner. The learned counsel also invited the attention of this court through the prosecution records and made an earnest attempt to convince the court that even if the prosecution allegations are admitted as true and correct, the ingredients of the offence alleged will not be attracted. The learned Counsel has relied on a series of pronouncements of the Apex Court as well as this Court to advance his contentions. - 5.The learned Public Prosecutor on the other hand submitted that final report has already been laid and the matter is now pending before the learned Magistrate. The petitioner has not appeared before the Court till date and Non Bailable Warrant is pending Crl. M.C. No.4847 of 2016 3 against him. According to the learned public prosecutor the instant petition filed under Section 482 of the Code is not liable to be entertained as the petitioner has an inviolable right to raise all his contentions before the Court below against at the time of framing of charge and if the learned Magistrate considers the charge to be groundless, he is empowered to discharge the accused. 6. I have carefully considered the rival contentions. 7.In this context it will be relevant to remind oneself of the principles laid down by the Apex Court in the matter of exercise of powers under Section 482 of the Code. It has been held that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation could be sustained. That is the function of the trial Court. Section 482 of the Code is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without a full-fledged enquiry. Crl. M.C. No.4847 of 2016 4 Though High Court may exercise its power to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power has be exercised sparingly and with circumspection. The interference must be on sound principles and the inherent power cannot be exercised to stifle a legitimate prosecution. It is also settled that , if on taking the allegations and the complaint as they were, without adding or subtracting anything, no offence was made out, then the High Court would be justified in quashing the proceedings in the exercise of its power under S.482 CrPC. ( See **MCD v. Ram Kishan Rohtagi** , (1983 (1) SCC 1), **Soundaram N V P.K. Ponnuraj and Another** ( 2014 (10) SCC 616 ). - 8.I refrain from passing opinion on the merits of the allegations at this stage lest it affect the case of either the prosecution or the accused. 9. In the case in hand, the charge sheet has been filed before the Court below. The procedure for trial of warrant cases by Magistrates is provided for in Chapter Crl. M.C. No.4847 of 2016 5 XIX of the Code. Section 238 of the Code specifically provides that at the stage of framing of charge, it is obligatory upon the learned Magistrate to hear the prosecution and the accused and if the learned Magistrate considers the Charge to be groundless , he is empowered to discharge the accused after recording his reasons . - 10.When alternate and comprehensive remedies are available for the petitioner under the Code, this Court will not be justified in sifting and weighing the materials in a petition filed under Section 482 of the Code. - 11.I am of the view that the petitioner is to approach the learned Magistrate and advance his contentions at the appropriate state. I find no good reason to interfere under Section 482 Cr.P.C. The petitioner may seek for discharge under Section 239 of the Code of Criminal Procedure. - 12.The learned Counsel then prays that the petitioner is prepared to surrender before the learned Magistrate and prays that necessary directions be issued to Crl. M.C. No.4847 of 2016 6 consider the application for recall of warrant and grant of bail. 13.Having regard to the facts and circumstances, the petitioner is directed to surrender before the trial court within 2 weeks from the date of this order and prefer application for recall of warrant and also for grant of bail with advance notice to the prosecutor concerned. In that event the learned Magistrate is directed to consider and dispose of the said application, preferably on the same day itself, on its merits and in accordance with law. Petition is disposed off as above. Sd/RAJA VIJAYARAGHAVAN V. JUDGE SKV