Joy v Sukumari and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **Crl.MC.No.6733 OF 2018** **AGAINST CC NO.1148/2018 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM** ## **PETITIONER:** **JOY, AGED 42 YEARS, S/O. FRANCIS, 'JOY BHAVAN', CONVENT ROAD, NALANCHIRA, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.VIPIN NARAYAN SMT.SEENA RAMAKRISHNAN SMT.POOJA PANKAJ SRUTHY N. BHAT** ## **RESPONDENTS:** **1 SUKUMARI, D/O BAVAMMA, VIDYANIKETAN, HOUSE NO.60, CHEMBAKASSERY NAGAR, KESHAVADASAPURAM, THIRUVANANTHAPURAM, PIN - 695011.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 BY ADV. SRI.S.MOHAMMED AL RAFI** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.6733 of 2018 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.6733 of 2018 ---------------------------------------------Dated this the 13[th] day of November, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed on 09.10.2018, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"….....to allow this Criminal Miscellaneous Case, quash Annexure A complaint and all further proceedings pursuant thereto in C.C. No.1148 of 2018 pending on the files of the Court of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, as against the petitioner/accused, so as to secure the ends of justice.”_ 2. Heard Smt.Sruthy Bhat, learned counsel appearing for the petitioner (sole accused), Sri.Saigi Jacob Palatty, learned Public Prosecutor, appearing for the 2[nd] respondent-State of Kerala and Sri.S.Mohammed Al Rafi, learned counsel appearing for contesting respondent No.1 (lady _de-facto_ complainant). 3. The petitioner herein was initially arrayed as accused No.1 among the 4 accused in First Information Report (FIR) in crime No.151/2010 of Medical College Police Station, Crl.M.C. No.6733 of 2018 3 Thiruvananthapuram, on 15.02.2010, for offences punishable under Sections 324 & 34 of the Indian Penal Code (IPC), on the basis of the First Information Statement (FIS) given by the 1[st] respondent ( _de-facto_ complainant). The police, after investigation, has filed Annexure-B final report/charge sheet in the said crime No.151/2010 of Medical College Police Station, Thiruvananthapuram, whereby petitioner herein (original A1) was deleted from the accused array and other 3 accused persons alone were included in the said accused array of the said Annexure-B Final Report/Charge sheet for the abovesaid offences punishable under Sections 324 & 34 of the IPC. 4. Being aggrieved thereby, the contesting respondent No.1 herein (lady _de-facto_ complainant) had filed petition seeking further investigation and with the leave of the competent jurisdictional Magistrate, concerned (Additional Chief Judicial Magistrate Court, Thiruvananthapuram), further investigation was also conducted and the police had filed an additional final report, wherein it was found that there are no materials to connect the petitioner with the crime and that he is not to be arrayed as an accused in the criminal proceedings before the criminal court, concerned. Crl.M.C. No.6733 of 2018 4 5. Being aggrieved thereby, the 1[st] respondent has filed Annexure-A protest complaint, upon which the learned Magistrate has taken cognizance. Earlier, the Additional Chief Judicial Magistrate, Thiruvananthapuram, had taken cognizance in respect of Annexure-B final report/charge sheet as against the other 3 accused persons, which led to the pendency of calendar case CC No.299/2011 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram, in which original accused 2 to 4 in the said crime alone has shown as re-arrayed as accused 1 to 3 and therein the petitioner herein (original accused A1) was deleted from the accused array, as aforestated. Consequent to the action of the learned Magistrate in taking cognizance in Annexure-A protest complaint, which has led to the pendency of calendar case CC No.1148/2018, on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram, in which the petitioner herein has been arrayed as the sole accused. It is this impugned protest complaint proceedings which has led to the above said CC No.1148/2018 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram, in which the petitioner herein has been arrayed as the sole accused that is under challenge in this proceedings before this Court. Crl.M.C. No.6733 of 2018 5 6. It is further pointed out by the petitioner that in respect of the same alleged incidents, a counter case was registered as against the _de-facto_ complainant herein (1[st] respondent herein), wherein she and some other persons were arrayed as accused in crime No.152/2010 of Medical College Police Station, Thiruvananthapuram. The police has completed the investigation and filed Annexure-C final report/charge sheet in the said crime No.152/2010 of Medical College Police Station, Thiruvananthapuram, which has now led to the pendency of CC No.298/2011 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram, in which the 1[st] respondent herein ( _de-facto_ complainant herein) has been arrayed as accused No.4 therein and 5 other persons have been arrayed as accused 1 to 3, 5 and 6 therein. 7. One Sri.Thomas, who is said to be the brother of the petitioner herein is said to be the _de-facto_ complainant in Annexure-C proceedings, in which the 1[st] respondent herein has been arrayed as accused No.4 therein. 8. The petitioner herein is a serving driver in the police department and the parties appeared to be living in the immediate neighbourhood and there are quite a few cases between them. The Crl.M.C. No.6733 of 2018 6 1[st] respondent herein ( _de-facto_ complainant herein) had filed a complaint before the police authorities stating that it is on account of the influence maintained by the petitioner herein, who is a serving driver of the police department that the investigation has not been properly conducted, etc. Therein the Additional Director General of Police, Southern Zone, Thiruvananthapuram, had directed a senior officer of the rank of Deputy Commissioner of Police, Law and Order, Thiruvananthapuram City, to conduct an enquiry into that petition and submit report. Therein, the Deputy Commissioner of Police, Law and Order, Thiruvananthapuram City, has furnished Annexure-D report dated 17.10.2016 to the Additional Director General of Police, Southern Zone, Thiruvananthapuram, stating that detailed enquiry has been conducted on the allegations raised by the petitioner herein and it was found that the allegations are not true. After perusal of the departmental records, the said enquiry officer at the rank of Deputy Commissioner of Police, has clearly found in Annexure-D report that at the relevant time of the incidents in relation to this case, the petitioner was on duty in the police department and that the allegations raised against him are false. 9. Annexure-E is the judgment rendered by the Crl.M.C. No.6733 of 2018 7 Additional Chief Judicial Magistrate, Thiruvananthapuram, on 23.01.2016 in C.C. No.694/2004, in which the 1[st] respondent herein is a complainant and the petitioner herein is the sole accused therein. The said proceedings in relation to private criminal complaint filed by the 1[st] respondent herein, and the learned Magistrate has considered various aspects of the matter in detail and it has been found that a criminal case as per CC No.359/2004 is pending in which PW1 therein (1[st] respondent herein) and her husband are accused and the allegations therein was that on 06.02.2003, about two days prior to the averments alleged in that case, PW1 and her husband had demolished the pathway over which the family of the petitioner herein (accused) had placed and that PW1 and her husband were convicted in that case by the Additional Chief Judicial Magistrate, Thiruvananthapuram, but later were acquitted in appeal, etc. So also, it has been found by the learned Magistrate in paragraph No.10 of Annexure-E judgment that a host of civil and criminal cases wherein the mother of PW2 and relatives of the accused are involved and that it is found that PW2 therein is an interested witness and that nowhere in the complaint was it alleged that PW2 was present at the place of occurrence and that the alleged Crl.M.C. No.6733 of 2018 8 incident had taken place and that the evidence given by PW2 therein is not believable, etc. Paragraph No.12 of Annexure-E judgment make obvious reference to the evidence given by PW4, who is a senior officer of the rank of Assistant Commissioner of Police, where it was found that the allegations raised against the police officials were found to be not correct. 10. After appreciating the evidence and taking into consideration the totality of the facts and circumstances of the case, the learned Magistrate in paragraph No.15 of Annexure-E judgment has found that there are strong reasons to believe that the said complaint is also part of the other disputes pending between the parties and that the prosecution has failed to prove that the accused had wrongfully restrained PW1 or voluntarily caused hurt to her, etc., as alleged and the accused therein (petitioner herein) was acquitted. 11. The brief of the prosecution case in the present Annexure-A protest complaint is that on 14.02.2010 between 12.30 pm. and 1 pm. in the afternoon, the petitioner (original A1) along with other accused(A2 to A4) had attacked the 1[st] respondent and her brother and thereby injuries were caused to them. 12. Two rounds of criminal investigations- one of which Crl.M.C. No.6733 of 2018 9 was at the instance of the original investigation and the further investigation has found that the allegations raised by the petitioner are false and incorrect. Serious allegations are made by the 1[st] respondent herein before the departmental police authorities about the _mala-fide_ influence of the petitioner herein, who is a serving driver of the department and none other than the Additional Director General of Police, Southern Zone, Thiruvananthapuram, had ordered an enquiry into the matter, which is conducted by a very high ranking police official of the rank of Deputy Commissioner of Police, who after exhaustive enquiry, has found in Annexure-D report that the allegations against the petitioner herein (A1) are false are now sought to be resurrected through the process of filing of Annexure-A protest complaint. 13. The matters relating to filing of final report, acceptability or otherwise of refer report, issues relating to filing of protest complaint by the aggravated de-facto complainant in such cases, etc. has been the subject matter of detailed consideration of various judgments of the Apex Court and of this Court. One such important decision rendered by this Court is a case in _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794]. Crl.M.C. No.6733 of 2018 10 Therein this Court has held that if the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. Further that, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. It will be profitable to refer paragraph No.12 of the abovesaid decision of this Court in _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794] _(supra)_ , which reads as follows:- _“12. If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the legal position, it is not lawful to the Magistrate to ignore the final report submitted by the police under Section 173(2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised.”_ 14. The various nuanced aspects of the well-settled legal proposition on the abovesaid matters have been dealt with by this Court in paragraph No.17 of _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794] _(supra)_ , which reads as follows:- Crl.M.C. No.6733 of 2018 11 _“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._ _(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 (7) the previous proceedings.”_ Crl.M.C. No.6733 of 2018 12 15. After hearing both sides _in extenso_ and after going through the materials on record including the impugned prosecution witness, it can be seen that the allegations raised by the petitioner has been the subject matter of exhaustive investigation by the police both at the original investigation stage, which led to Annexure-B report as well as a further investigation report in the same case, wherein it was found that the allegations raised by the petitioner are false and incorrect. Serious allegations regarding the _mala-fide_ influence of the petitioner was raised before the departmental superiors which led to Annexure-D report of a senior officer of the rank of Deputy Commissioner of Police submitted to the Additional Director General of Police, Southern Zone, Thiruvananthapuram, which would show that the allegations raised against the petitioner herein are incorrect and wrong and that the petitioner was, in fact, present in the department at the time when the alleged incident in this case has taken place and that the allegations raised against the petitioner are without any foundation. 16. A comparison of Annexure-A protest complaint with Annexure-B final report, etc. would show that the very same allegations raised in the impugned criminal proceedings, which Crl.M.C. No.6733 of 2018 13 was triggered on the basis of an FIS and thorough investigation are now sought to be resurrected and re-hashed in Annexure-A private criminal complaint. No new allegations, which could not have been presented earlier, despite due diligence of the 1[st] respondent had been presented herein. It cannot be said that any manifest injustice has been suffered by the 1[st] respondent in view of the above said totality of the facts and circumstances of the case. Hence, the learned Magistrate has egregiously erred in in having acted upon Annexure-A protest criminal complaint and having taken cognizance thereon, which has now led to the pendency of CC No.1148/2018 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. 17. The upshot of the above discussion is that the initiation of the impugned criminal proceedings at Annexure-A, which has led to CC No.1148/2018 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram, against the petitioner is an abuse of the process of court which would warrant interdiction at the hands of this Court in exercise of the inherent extra ordinary powers conferred under Section 482 of the Cr.P.C. That being so, it is ordered in the interest of justice that the impugned AnnexureA protest complaint which has led to the pendency of CC Crl.M.C. No.6733 of 2018 14 No.1148/2018, in which the petitioner herein has been arrayed as the sole accused, on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram, and all further consequential proceedings arisen therefrom as against the petitioner/accused therein will stand quashed and set aside. 18. It is made clear that all the other pending proceedings including CC Nos.299/2011 & 298/2011, etc. may go on in accordance with law, untrammeled and uninfluenced in any manner by the observations and findings made by this Court hereinabove. 19. Moreover, Annexure-E judgment would also show that the parties were living in the immediate neighborhood for a very long time and a host of civil and criminal cases are pending and one such case at Annexure-E has ended in the acquittal of the accused (petitioner herein) with the clear finding that the allegations raised against him by the 1[st] respondent herein have not been proved, etc. The abovesaid factual aspects relating to the long standing difference of opinion between these rival parties, would also show that the protest complaint has been initiated for extraneous considerations. The petitioner will produce certified copy of this order before Crl.M.C. No.6733 of 2018 15 the Additional Chief Judicial Magistrate, Thiruvananthapuram, as well as before the Investigating Officer in Annexure-B crime No.151/2010 of Medical College Police Station, Thiruvananthapuram, which led to CC No.299/2011, on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand finally disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//20112020 Crl.M.C. No.6733 of 2018 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **ANNEXURE A: TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM.** - **ANNEXURE B: TRUE COPY OF THE FINAL REPORT IN CRIME NO.151/2010 OF MEDICAL COLLEGE POLICE STTION, THIRUVANANTHAPURAM WHICH IS NOW PENDING AS CC 299/2011 BEFORE THE ACJM, THIRUVANANTHAPURAM.** - **ANNEXURE C: TRUE COPY OF THE FINAL REPORT IN CRIME NO.152/2010 OF MEDICAL COLLEGE POLICE STTION, THIRUVANANTHAPURAM WHICH IS NOW PENDING AS CC 298/2011 BEFORE THE ACJM, THIRUVANANTHAPURAM.** - **ANNEXURE D: TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE DEPUTY COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY.** - **ANNEXURE E: TRUE COPY OF THE JUDGMENT IN CC.NO.694/2004 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRTHIRUVANANTHAPURAM DATED 23.01.2016.** **RESPONDENTS' EXHIBITS: NIL** Crl.M.C. No.6733 of 2018 17