High Court of KeralaSingle Judge2019-03-15This petition will stand dismissed.

Johnkutty M.V. v. State of Kerala

Case / Petition Number:Crl.MC.No. 838 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2019-03-15
Court Decision / Holding: This petition will stand dismissed.
Final Disposition: This petition will stand dismissed.

Parties to the Case

Appellants / Petitioners

Johnkutty M.V.

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Smt. K. Sheeba, Public Prosecutor

Legal Representation & Advocates

Counsels for Respondents

• Smt. K. Sheeba, Public Prosecutor
• Public Prosecutor, State of Kerala

Case Synopsis & Summary

This is a criminal miscellaneous petition under Section 482 Cr.P.C. filed by the accused, Johnkutty M.V., challenging all further proceedings in C.C.No.223/2017 before the Chief Judicial Magistrate, Thiruvananthapuram, arising from crime no. 1133/2011 at Museum Police Station. The prosecution alleged that on 28.11.2011 the accused intercepted a KSRTC bus and assaulted the de facto complainant. The final report was presented in 2012, and a counter case was registered leading to C.C.No.543/2012. Trial proceeded with PW1–PW7 and exhibits P1–P5. It emerged that the CJM had jurisdiction to try First Class offences within the Museum Police Station’s limits, and the CJM invoked Section 410 Cr.P.C., withdrawing the case by an order dated 13.11.2016. On appearance, the CJM framed a charge under Sections 341 and 332 IPC, and the matter was posted for evidence. The petitioner obtained a favourable order in a revision and then challenged the earlier orders via subsequent revisions, with a 20-month delay in filing one revision, which the Sessions Court dismissed for want of sufficient cause. The petitioner contended abuse of process and urged quashing of proceedings, argues contradictions in evidence, and cites prior orders. The learned court held that Section 482 powers should be exercised sparingly, not to reweigh evidence, and that the petitioner should exhaust remedies; hence the petition was dismissed.

Provisions of Law Cited

Section 482 of Cr.P.C.Section 410 of Cr.P.C.Section 313 of Cr.P.C.Section 341 IPCSection 332 IPC

Legal Doctrines & Maxims

Abuse of process of the court
Ends of justice
Powers under Section 482 Cr.P.C. to be exercised sparingly and with circumspection
Inherent power should not stifle a legitimate prosecution
If the allegations and the complaint, taken as they are, do not disclose an offence, the High Court may quash

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the ongoing prosecution constitutes an abuse of process and a misuse of judicial resources. He argues that the evidence produced is inconsistent in material particulars, and that the entire sequence of orders—particularly the discharge/withdrawal under Section 410 Cr.P.C.—shows a lack of jurisdiction and premature framing of charges. Citing prior orders and the trial court’s proceedings, he asserts the remedy under Section 482 should be invoked to quash the proceedings to prevent abuse and stifling of the ends of justice. He emphasizes that the court should not weigh the evidence at this stage and should consider the overall pattern of orders and delays before intervening.

Contentions of Respondents

The State contends that the petitioner has availed an adequate remedy and has invoked Section 482 only after obtaining adverse orders. The discharge petition is still pending, and there is no justifiable reason to entertain the petition to quash. It is submitted that the High Court should refrain from reweighing evidence and should allow the trial to proceed. The delay and sequence of revisions, including challenges to orders passed earlier, are not sufficient grounds to quash the proceedings, especially since jurisdictional issues were implicated and the law governing 410 Cr.P.C. was properly invoked.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
MCD v. Ram Kishan Rohtagi	[(1983) 1 SCC 1]	Positive	Cited to support the principle that the High Court should exercise Section 482 sparingly and not indulge in reappraisal of evidence; maintains that the jurisdiction is limited and not meant to short-circuit the prosecution.
Soundaram N v. P.K. Ponnuraj and Another	[(2014) 1 SCC 616]	Positive	Cited for the proposition that if the facts as stated do not make out an offence, the High Court may quash; reinforces cautious use of inherent power and not weighing evidence at the pre-trial stage.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** **Crl.MC.No. 838 of 2019** **CC NO.223/2017 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM** **CRIME NO. 1133/2011 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **JOHNKUTTY.M.V., AGED 53 YEARS,** **S/O. M.D VARGHESE, T.C 25/4243 (1), VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-33, KERALA.** **BY JOHNKUTTY.M.V (PARTY IN PERSON)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **SMT. K.SHEEBA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 838 of 2019** **2** ## **ORDER** The petitioner herein is the accused in C.C.No.223 of 2017 on the files of the Chief Judicial Magistrate Court, Thiruvananthapuram. In this petition filed under Section 482 of the Cr.P.C., he seeks to quash all further proceedings in the aforesaid case. 2. The prosecution allegation is that on 28.11.2011, at 7.50 p.m., the petitioner, intercepted a KSRTC bus driven by the de facto complainant and thereafter assaulted him. 3. The records reveal that the final report was laid before the Judicial Magistrate of the First Class-III, Thiruvanathapuram, in the year 2012. At the instance of the petitioner, a counter case was registered and the learned Magistrate has taken cognizance of the case as C.C.No.543 of 2012. 4. Trial commenced and the prosecution examined Pws. 1 to 7 to prove its case. Exhibits-P1 to P5 were marked. After closure of the prosecution evidence, the incriminating materials were put to the petitioner under Section 313 of the Cr.P.C. On the side of the defence, some witnesses were examined. In the course of hearing, it came to the notice of the trial court that only the Chief Judicial Magistrate had jurisdiction to try First Class offences within the limits of Museum **Crl.MC.No. 838 of 2019** **3** Police Station. The learned Magistrate addressed the Chief Judicial Magistrate invoking the powers under Section 410 of the Cr.P.C., the case was withdrawn by the Chief Judicial Magistrate by order dated 13.11.2016. On appearance of the accused, the learned Chief Judicial Magistrate framed charge against the petitioner under Sections 341 and 332 of the IPC and the case was posted for evidence to 7.8.2017 5. Aggrieved by the order framing charge, the petitioner approached the Sessions Court and filed a revision petition. The learned Sessions Judge allowed Crl.R.P.No. 35 of 2017 and the matter was remitted back to the learned Chief Judicial Magistrate and the court was ordered to consider the discharge petition filed by the petitioner. The case was then posted to 14.5.2018. 6. Immediately thereafter, the petitioner filed another revision petition before the learned Sessions Judge as Crl.R.P. No.36 of 2018 challenging the earlier order by which the learned Chief Judicial Magistrate had withdrawn the matter to itself under Section 410 of the Cr.P.C. There was a delay of about 20 months in filing the revision petition. The learned Sessions Judge dismissed the application filed by the petitioner holding that he has not made out sufficient cause for condonation of the huge delay. The learned Sessions Judge took note of the fact that the petitioner had **Crl.MC.No. 838 of 2019** **4** challenged the order framing charge, which was a subsequent order, and after obtaining favourable orders, ventured to file a revision petition challenging the order passed about 2 years back. After dismissal of the above petition on 11.1.2019, the petitioner has approached this Court with this petition under Section 482 of the Cr.P.C. 7. Elaborate arguments were advanced by the petitioner, who argued the matter in person. He would refer to the evidence of the prosecution witnesses and the prior order passed by the courts below and would contend that the case against him is a clear abuse of process and the same is liable to be quashed. The entire evidence let in by the prosecution as well as the petitioner and also the orders passed by various courts were highlighted by the petitioner in order to persuade this Court to invoke the powers under Section 482 of the Code. He would further contend that the order dismissing the revision petition on the ground of delay was also unsustainable. According to the petitioner, the evidence let in by the prosecution witnesses were contradictory in material particulars and this Court will be well justified in interfering at this stage. 8. The learned Public Prosecutor submitted that the petitioner had invited an order from the learned Sessions Judge and **Crl.MC.No. 838 of 2019** **5** his discharge petition is pending consideration of the Chief Judicial Magistrate. When he had secured an adverse order in Annexure-A34 revision petition, he has ventured to file the instant petition under Section 482 of the Code. There is no justifiable reason to entertain this petition, submits the learned Public Prosecutor. 9. Annexure-A34 order passed by the learned Sessions Judge would reveal that after obtaining a favourable order from the learned Sessions Judge, the petitioner ventured to challenge the earlier order passed by the learned Chief Judicial Magistrate under Section 410 of the Cr.P.C. The said revision petition was dismissed in the month of January 2019. It is thereafter that the petitioner has come up with this petition under Section 482 raising a challenge of the entire proceedings. This Court will not be justified in sifting and weighing the evidence let in by the prosecution witnesses before the learned Magistrate. The case was withdrawn by the learned Chief Judicial Magistrate under Section 410 of the Cr.P.C. when it was brought to his notice that the court trying the offence had no jurisdiction. I find no illegality in the order passed by the said Court. Furthermore, the challenge raised against the said order was repelled by the learned Sessions Judge as well. It is undisputed that an incident occurred on 28.11.2011 and both sides had sustained injuries. **Crl.MC.No. 838 of 2019** **6** 10. After having gone through the records, the contention of the petitioner that the allegations in the final report will not make out an offence cannot be accepted. 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. 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 Section 482 of the Cr.P.C. (See **MCD v. Ram Kishan** **Crl.MC.No. 838 of 2019** **7** **Rohtagi** , [(1983) 1 SCC 1]; **Soundaram N v. P.K. Ponnuraj and Another** [(2014) 1 SCC 616]). 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. 11. The petitioner has already availed a comprehensible remedy and I am of the view that the petitioner should exhaust his remedies before the trial Court itself. When alternate and comprehensive remedies have already been availed by 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. I find no good reason to interfere with the proceedings under Section 482 of the Cr.P.C. This petition will stand dismissed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V., JUDGE** DSV/16.3.19 //TRUE COPY// P.A TO JUDGE **Crl.MC.No. 838 of 2019** **8** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE-A1**|**TRUE COPY OF THE CANADIAN PASSPORT ATTACHED**| |**ANNEXURE-A2**|**TRUE COPY OF THE DISABILITY CERTIFICATE**| |**ANNEXURE-A3**|**TRUE COPY OF THE CRIME AND FIR FOR THE**| ||**CRIME 1133/11 OF THE MUSEUM POLICE STATION**| |**ANNEXURE-A4**|**TRUE COPY OF THE FINAL REPORT OF THE CRIME**| ||**1133/34 (CC 223/17)**| |**ANNEXURE-A5**|**TRUE COPY OF THE RECEIPT OF THE COMPLAINT**| ||**GIVEN TO COMMISSIONER OF POLICE , TVPM**| |**ANNEXURE-A6**|**TRUE COPY OF THE RTI REQUEST TO KERALA**| ||**POLICE TO GET CCTV FOOTAGE**| |**ANNEXURE-A7**|**TRUE COPY OF THE 'B' DIARY FOR THE CC**| ||**223/17 (CC191/2012 OF JFMC-III)**| |**ANNEXURE-A8**|**TRUE COPY OF THE RTI, ACT INFORMATION FORM**| ||**MUSEUM POLICE STATION**| |**ANNEXURE-A9**|**TRUE COPY OF THE RIGHT TO INFORMATION ACT**| ||**FORM JFCM-III**| |**ANNEXURE-A10**|**TRUE COPY OF THE [164 CR.P.C.] * AMENDED AS**| ||**“DEPOSITION OF WITNESS STATEMENT”**| ||**DEPOSITIONS OF 'DW2' IN CC 223/17, WITH**| ||**TYPED COPY.**| |**ANNEXURE-A11**|**TRUE COPY OF THE [164 CR.P.C.] * AMENDED AS**| ||**“DEPOSITION OF WITNESS STATEMENT”**| ||**DEPOSITIONS OF 'DW3' IN CC 223/17, WITH**| ||**TYPED COPY.**| |**ANNEXURE-A12**|**TRUE COPY OF THE [164 CR.P.C.] * AMENDED AS**| ||**“DEPOSITION OF WITNESS STATEMENT”**| ||**DEPOSITIONS OF 'DW4' IN CC 223/17, WITH**| ||**TYPED COPY.**| |**ANNEXURE-A13**|**TRUE COPY OF THE SECOND WITNESS SCHEDULE**| ||**SUBMITTED TO JFCM-III**| |**ANNEXURE-A14**|**TRUE COPY OF THE ORDER OF HON.JFCM-III,FOR**| ||**THE CMP NO 3992/2016**| **Crl.MC.No. 838 of 2019** **9** **ANNEXURE-A15** **TRUE COPY OF THE COPY APPLICATION FIELD FOR CHARGE SHEET** **ANNEXURE-A16 TRUE COPY OF THE ADMINISTRATIVE ORDER OF JFCM-III TO WITHDRAW FILES** **ANNEXURE-A17 TRUE COPY OF THE ORDER NO. C. 309/17 OF HON.CJM , DATED 17.1.2017** - **ANNEXURE-A18 TRUE COPY OF THE DISCHARGE PETITION DATED 31.3.2017,CMP 846/17** - **ANNEXURE-A19 TRUE COPY OF THE ORDER OF SESSION COURT-I IN CRL RP 35/17** - **ANNEXURE-A20 TRUE COPY OF THE MEMO OF HON CJM FOR CONSIDERATION OF DISCHARGE PETITION** - **ANNEXURE-A21 TRUE COPY OF THE ADVANCE PETITION (CMP 924/2018) AFFIDAVIT** - **ANNEXURE-A22 TRUE COPY OF THE COPY OF THE ADVANCE PETITION 'B' DIARY (CMP 924/18)** - **ANNEXURE-A23 TRUE COPY OF THE COPY OF THE CRL.RP.36/18 PETITION** - **ANNEXURE-A24 TRUE COPY OF THE U/S 311 CR.PC PETITION FILED BY PROSECUTION IN C.C.NO.191/2012 ON 15.10.2015** - **ANNEXURE-A25 TRUE COPY OF THE FIR FOR THE OF CC 543/12 JFCM-III, TRIVANDRUM.** - **ANNEXURE-A26 TRUE COPY OF THE COMPLAINT RECEIPT FROM MUSEUM POLICE STATION** - **ANNEXURE-A27 TRUE COPY OF THE [U/S 164] * AMENDED AS “DEPOSITION OF WITNESS STATEMENT” STATEMENT OF SI PREMKUMAR IN CC 543/12** - **ANNEXURE-A28 TRUE COPY OF THE U/S 313 EXAMINATION OF UNNIPILLA IN CC 543/12** - **ANNEXURE-A29 TRUE COPY OF THE [U/S 164] * AMENDED AS “DEPOSITION OF WITNESS STATEMENT” STATEMENT OF UNNIPILLA IN CC 191/12** **Crl.MC.No. 838 of 2019** **10** |**ANNEXURE-A30**|**TRUE COPY OF THE [U/S 164] * AMENDED AS**| |---|---| ||**“DEPOSITION OF WITNESS STATEMENT” STATEMENT**| ||**OF JOY RAJ, MAHASSER LOCATION WITNESS**| |**ANNEXURE-A31**|**TRUE COPY OF THE [U/S 164 CR.P.C.]* AMENDED**| ||**AS “DEPOSITION OF WITNESS STATEMENT”**| ||**STATEMENT OF PREMKUMAR, IN CC 191/12**| |**ANNEXURE-A32**|**TRUE COPY OF THE COPY OF THE CMP 32/2019**| |**ANNEXURE-A33**|**TRUE COPY OF THE ARGUMENT NOTE FOR CMP**| ||**36/2018**| |**ANNEXURE-A34**|**TRUE COPY OF THE CRL.R.P 36/2018 DECISION**| |**ANNEXURE-A35**|**TRUE COPY OF THE COPY OF THE RECONSIDER**| ||**APPLICATION**| ## **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY// P.A.TO JUDGE**