In the High Court of Kerala at Ernakulam – Crl.M.C. No. 115 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **FRIDAY, THE 28TH DAY OF FEBRUARY 2014/9TH PHALGUNA, 1935** ## **Crl.MC.No. 115 of 2013** **-------------------------CC NO. 915/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MAVELIKKARA ........** **PETITIONERS/ACCUSED NOS. 1 AND 2:** **-----------------------------------------------------------** **1. SATHYADEVAN, AGED 67 YEARS, S/O. NANU, SUNBEEM HOUSE, PALAMEL VILLAGE, KUDASHANADU MURI, ALAPPUZHA DISTRICT.** **2. JAIN SATHYADEVAN, AGED 30 YEARS. S/O. SATHYADEVAN, SUNBEEM HOUSE, PALAMEL VILLAGE, KUDASHANADU MURI, ALAPPUZHA DISTRICT.** **BY ADV. SMT.S.L.SYLAJA** ## **RESPONDENT AND STATE:** **------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. HARIKRISHNAN,, AGED 46 YEARS, S/O. BALAKRISHNA PILLAI, MUNDAKKALTHEKKATHIL VEETILL, PALAMEL VILLAGE, KUDASHANADU MURI, ALAPPUZH DISTRICT - 688 001.** **R1 BY PUBLIC PROSECUTOR SRI.JITHESH.R. R2 BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.115/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.1: COPY OF THE PRIVATE COMPLAINT FILED AS CMP NO.3778/2012 BY THE 2ND RESPONDENT DTD. 15/09/2012.** **ANNEX.II: COPY OF THE PASSPORT.** **ANNEX.III: COPY OF THE BOOKING REFERENCE OF EMIRATES FLIGHT DTD. 26/08/2012.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.115 of 2013 ---------------------------------------------Dated this the 28[th] day of February, 2014 ## **ORDER** The petitioners, who are 1[st] and 2[nd] accused in C.C.No.915/2012 of Judicial First Class Magistrate Court, Mavelikkara, have required to quash the proceedings in the above case by invoking the inherent jurisdiction U/s.482 of Cr.P.C. 2. The above complaint was filed by the 2[nd] respondent U/Ss.447, 341 and 506(ii) IPC. The allegation is that on 27.8.2012 at 8 p.m., the petitioners trespassed into the property of the 2[nd] respondent and the 1[st] petitioner threatened him to kill and called abusive words against him and thereby committed the offence. Hence, the 2[nd] respondent filed Annexure-1 complaint. Aggrieved by that, the petitioners approached this Court for invoking the Crl.M.C.No.115/13 2 ## inherent jurisdiction. 2. The learned counsel appearing for the petitioner contended that the 1[st] petitioner was not in station when the alleged incident was occurred. Moreover, the 1[st] petitioner was working abroad and to prove that point, the learned counsel produced Annexures-II and III. When prima facie case is not made out against the petitioners, this is a fit case to invoke the inherent jurisdiction. The learned counsel relied the decision of the Apex Court in _**Anita Malhotra**_ v. _**Apparel Export Promotion Council and another**_ [2011 KHC 5012]. 3. The learned Public Prosecutor and the learned counsel appearing for the 2[nd] respondent strongly resisted the above contention and contended that Annexure-II and III are not admissible when invoking the inherent jurisdiction. There is no challenge from the side of the petitioners with regard to the cognizance of the offence taken by the learned Magistrate. When there is no Crl.M.C.No.115/13 3 challenge with regard to the cognizance, the inherent jurisdiction cannot be invoked and he relied the decision of the Apex Court in _**Mahesh Choudhary**_ v. _**State of Rajasthan and another**_ [ 2009 KHC 414]. 4. According to Section 482 Cr.P.C., the inherent jurisdiction can be invoked for the three grounds mentioned therein, in order to make such orders as may be necessary to give effect to any orders under the Code or to prevent abuse of process of the Court or otherwise to secure ends of justice. 5. The records show that prima facie case is made out against the petitioners. When prima facie case is made out, it is not fair to invoke the inherent jurisdiction. The Apex Court in _Mahesh Choudhary's case (supra) held as follows (para 14 and 15):_ “14. It is also well settled that save and except very exceptional circumstances, the Court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself Crl.M.C.No.115/13 4 may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior Courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfil the ingredients of the offence alleged against the accused. 15. Indisputably, the question as to whether the complainant was entitled to a higher amount of commission in terms of the agreement dated 21/02/1973 is essentially a civil dispute. The complainant in terms of the said agreement was not only entitled to inspect the documents maintained by the accused but also to get the same audited. It is , therefore, difficult to hold as has rightly been opined by the Investigating Officer that a case for imposing a criminal liability on the accused on that score has been mad out. While saying so, we are not unmindful of the limitations of the Court's power under S.482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The Court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole.” Therefore, in the facts and circumstances of this case, I am of the view that prima facie case is made out against the petitioners. When prima facie case is made out against the petitioners, they can agitate the matter in the Crl.M.C.No.115/13 5 trial Court with Annexures-II and III with regard to the absence at the time of incident. The Apex Court in _**Madhu**_ ## _**Limaye v. State of Maharashtra**_ [(1977) 4 SCC 551] held as follows: “The following principles in relation to the exercise of the inherent power of the High Court have been followed ordinarily and generally, almost invariably, barring a few exceptions: (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. (2) That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice. (3) That it should not be exercised as against the express bar of law engrafted n any other provision of the Code. “ Therefore, this is not a fit case to invoke the inherent jurisdiction U/s.482 Cr.P.C. However, the petitioners are at liberty to take their contentions and submit Annexures-2 and 3 in the trial Court in respect of their defence. This Crl.M.C. is disposed accordingly. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.115/13 6 Crl.M.C.No.115/13 7