K. A. Shamsudheen and Rehiyanath M M v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST ``` ``` AGRAHAYANA, 1945 ``` ## **`CRL.MC NO. 5212 OF 2023`** ``` CRIME NO.1/2015 OF VACB, ERNAKULAM, Ernakulam ``` ## **`PETITIONER/S:`** ``` 1K.A SHAMSHUDHEEN AGED 56 YEARS KODAKKATTU HOUSE, PALLARIMAGALAM (P.O), MYLOOR, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKILAM DISTRICT, PIN - 686671 2REHIYANATH M M AGED 55 YEARS W/O SHAMSHUDHEEN, AGED 55,KODAKKATTU HOUSE, PALLARIMAGALAM (P.O), MYLOOR, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKILAM DISTRICT, PIN - 686671 BY ADVS. ALEXANDER JOSEPH AKHILASREE BHASKARAN ANTONY NIKHIL REMELO ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031` - `2 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI-CORRUPTION BUREAU, CENTRAL RANGE, ERNAKULAM, PIN - 682017` - `3 THE VILLAGE OFFICER VARAPPETTY VILLAGE, VARAPPETTY P O, KOTHAMANGALAM TALUK, ERNAKULAM DISRICT, PIN - 686691 BY ADV PUBLIC PROSECUTOR` Crl.M.C. No. 5212 of 2023 ..2.. ## **`OTHER PRESENT:`** ``` RAJESH A,SPL GP VIGILANCE;REKHA S SR,GP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No. 5212 of 2023 ..3.. ## **K. BABU, J** ## **------------------------------------------------Crl.M.C. No. 5212 of 2023 ------------------------------------------------Dated this the 22[nd ] day of November, 2023** ## **O R D E R** The petitioners seek to quash FIR No.1/2015 registered by the Vigilance and Anti Corruption Bureau Central Range, Ernakulam. They and the other accused are alleged to have committed offences punishable under Sections 409, 477A, 404 of IPC and Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. 2. Accused No.1 is the Village Officer, Varappetty Village of Kothamangalam Taluk, Ernakulam District. Accused No.2 is the Sub Registrar, Pothanikkad. A document writer is accused No.3. The petitioners herein are accused Nos. 4 and 5 respectively. 3. The prosecution allegation is as follows:- The petitioners and the other accused hatched a criminal conspiracy and in pursuance of the said conspiracy, Accused No.3 prepared a false settlement Crl.M.C. No. 5212 of 2023 ..4.. deed in favour of Accused No.5 in respect of 54 cents of land, in Sy.No.423/15 and 423/16B of Varappetty Village which belonged to the Government of Kerala, describing that the property belonged to Accused No.4 and got it registered with the aid of the Sub Registrar (A2). Accused Nos. 1 and 2 abused their official position as public servants and with dishonest intention obtained pecuniary advantage and caused loss to the Government. 4. The foundation of the prosecution case is that the petitioners herein and the other accused pursuant to the conspiracy created a false document in respect of 54 cents of land vested with the Government and registered the property in the name of petitioner No.2. 5. The case of the petitioners is that the property originally belonged to Amalipurath Saidumma and her son Uran Muhammed and they purchased the same on 07.03.1985. According to the petitioners, the first petitioner purchased 1 Acre 88 cents of land in Sy.No.423/11B, 423/16A, 423/14, 423/16B, 423/15B and Crl.M.C. No. 5212 of 2023 ..5.. 423/15 of Myloor Kara of Varappetty Village as per sale deed dated 07.03.1985. There was a mistake in the entry regarding the property in the Revenue Register. Though petitioner No.1 applied for effecting mutation before the Revenue authorities, mutation was effected only in respect of 1.34 Acres of land. However, petitioner No.1 remained in continuous possession of the property since the execution of the sale deed on 07.03.1985. On 12.02.2008, petitioner No.1 executed deed No.414/2018 of Pothanikkad SRO in respect of 54 cents of property, the disputed settlement deed, in favour of petitioner No.2. The property was mutated in the name of petitioner No.2. A member of the public filed a complaint before the RDO, Muvattupuzha alleging creation of false document in respect of Government land. On 17.06.2003, the RDO, Muvatupuzha cancelled the Thandapper number registered in favour of petitioner No.2. The petitioners challenged the order passed by the RDO, Muvattupuzha before the Appellate Authority as per the provisions of the Crl.M.C. No. 5212 of 2023 ..6.. Transfer of Registry Rules,1966. Finally, the petitioners approached this Court by filing W.P.(C) No. 8519/2018. This Court directed the District Collector to look into the matter and pass appropriate orders, in accordance with law. The District Collector, as per Annexure A7 order set aside the order of the RDO and directed to effect mutation in respect of 37 cents of land invoking Rule 28 of the Transfer of Registry Rules, 1966, holding that the petitioners have been in actual, continuous and uninterrupted possession of the property as reputed owners for 12 years or more. 6. The facts leading to Annexure-A7 order is not under challenge. The right, title and possession of 54 cents of land registered in the name of the petitioners are not under dispute. 7. The prosecution allegation as per Annexure-A1 FIR has to be considered based on Annexure A7 order which has finally settled that the property belonged to the petitioners. Now the question that arises for Crl.M.C. No. 5212 of 2023 ..7.. consideration is whether the allegation of the Vigilance that petitioner No.1 executed a false document in favour of her wife pretending to be the owner of the property would stand for a moment. The allegations do not disclose any cognizable offences against the petitioners. The continuation of the criminal proceedings against the petitioners is certainly an abuse of the process of Law. 8. I am conscious of the principles enunciated in _**M/s. Neeharika Infrastructure Pvt. Ltd. v State of Maharashtra and others**_ (AIR 2021 SC 1918). The power vested in the High Court under Section 482 of the Code should be used sparingly at the stages of issuing process or committal or framing charges as it would have far-reaching consequences in inasmuch as it would negate the prosecution’s case without allowing the prosecution to lead evidence. Such a course is to be taken with caution, care and circumspection. When a prayer for quashing the FIR is made by the accused, the Court when it exercises the power under Section 482 of the Code of Crl.M.C. No. 5212 of 2023 ..8.. Criminal Procedure, only has to consider whether the allegations in the FIR disclose the commission of a cognizable offence or not. The Court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence, and the court has to permit the investigating agency/police to investigate the allegations in the FIR. 9. However, if the High Court is fully satisfied that the materials produced by the accused are such that would lead to the conclusion that his defence is based on sound, reasonable and indubitable facts, or the same would rule out or displace the assertions in the complaint or the materials relied on by the accused would reject and overrule the veracity of the allegations, the judicial conscience of the High Court would persuade to exercise its power under Section 482 of Cr.P.C and to quash such criminal proceedings to avoid or to prevent the abuse of the process of the court and secure the ends of justice. Crl.M.C. No. 5212 of 2023 ..9.. 10. On the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C., the Apex Court in _**State of Haryana and Others v. Bhajan Lal and Others**_ (1992 Supp. (1) 335) held thus:- **“102.** In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report 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. (2) Where the allegations in the first information report and other materials, if any, accompanying Crl.M.C. No. 5212 of 2023 ..10.. the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. Crl.M.C. No. 5212 of 2023 ..11.. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. The present case is fully covered by categories (1) and (3), as enumerated in _**State of Haryana**_ (supra). I am of the view that, in the present facts and circumstances, the criminal proceedings consequent to the final report in C.C.No.1 of 2022 are liable to be quashed.” Resultantly, the Crl.M.C. is allowed. FIR No.1/2015 pending before the Enquiry Commissioner and Special Judge, Muvatupuzha and all consequential proceedings qua the present petitioners stand quashed. **Sd/K.BABU, JUDGE** kkj Crl.M.C. No. 5212 of 2023 ..12.. ## **`APPENDIX OF CRL.MC 5212/2023`** ## `PETITIONER ANNEXURES` - `Annexure A1 TRUE COPY OF THE FIR NO: 1/2015 DATED 06/01/2015 OF THE VIGILANCE AND ANTICORRUPTION BUREAU, CENTRAL RANGE ERNAKULAM` - `Annexure A2 TRUE COPY OF THE KERALA ESCHEATS AND FORFEITURES ACT, 1964` - `Annexure A3 TRUE COPY OF THE NOTICE DATED 24.06.2014 OF THE 2ND RESPONDENT TO THE PETITIONERS` - `Annexure A4 TRUE COPY OF THE APPLICATION OF THE 1ST PETITIONER TO THE 2ND RESPONDENT` - `Annexure A5 TRUE COPY OF REPLY DATED 07.02.2015 OF THE 2ND RESPONDENT TO THE 1ST PETITIONER` - `Annexure A6 TRUE COPY OF THE ORDER DATED 15/07/2015 IN R P NO 630/2015 IN WP© NO 3930/2015 OF THE HIGH COURT OF KERALA` - `Annexure A7 TRUE COPY OF THE ORDER DATED 30.12.2020 OF THE DISTRICT COLLECTOR ERNAKULAM` - `Annexure A8 TRUE COPY OF THE SETTLEMENT DEED NO 261/22 DATED 04/02/2022 OF POTHANICAD SRO` - `Annexure A9 TRUE COPY OF THE LAND TAX RECEIPT DATED 07.03.2022 ISSUED BY THE VILLAGE OFFICER` - `Annexure A10 TRUE COPY OF SETTLEMENT DEED NO 363/1/2023 DATED 13.02.2023 OF POTHANICAD SRO` - `Annexure A11 TRUE COPY OF THE APPLICATION DATED 10.05.2023 OF THE 1ST PETITIONER TO THE 3RD RESPONDENT` - `Annexure A12 TRUE COPY OF THE INFORMATION DATED 20/05/2023 ISSUED BY THE PUBLIC INFORMATION OFFICER OF VARAPPETTY VILLAGE`