K. Radhakrishnan Nair v. State of Kerala and Sumathy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940 Crl.MC.No. 1773 of 2016** **CP NO.88/2015 ON THE FILES OF THE J.M.F.C.-I, NEDUMANGAD** **CRIME NO. 198/2014 OF VENJARAMOODU POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **K.RADHAKRISHNAN NAIR, AGED 64 YEARS, S/O.KUTTAPPAN PILLAI, RETIRED PROFESSOR OF COMMERCE MG COLLEGE, THIRUVANANTHAPURAM, RESIDING AT "VRINDAVANAM", VENJARAMOODU PO, THIRUVANANTHAPURAM.** **BY ADV. SRI.SANTHAN V.NAIR** ## **RESPONDENTS/STATE/DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, VENJARAMOODU POLICE STATION, VENJARAMOODU, TRIVANDRUM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 SUMATHY, D/O.PACHI, RESIDING AT VETTUVILA PUTHEN VEEDU, VETUVILA, NELLINAD VILLAGE, VENJAARAMOODU PO, THIRUVNANTHAPURAM - 695607.** **SRI. T. R. RENJITH PP.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 1773 of 2016 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure ('the Code” for brevity) with a prayer to quash the proceedings pending against the petitioner. 2. The petitioner herein is the accused in C.P.No.88/2015 on the file of the Judicial First Class Magistrate Court-I, Nedumangad. The aforesaid case has arisen from Crime No.198/2014 registered at the instance of the 2[nd] respondent herein under Sections 376 and 506(i) of the IPC. 3. The brief facts giving rise to the present prosecution can be recapitulated as under: The petitioner is a retired professor. On 16.2.2014, the de facto complainant came up with a life altering revelation concerning the petitioner. She alleged that she used to work as a maid in his house and that on 13.03.1986, while his wife and family members were not at home, she was subjected to rape by the petitioner. She consequently became pregnant and delivered a girl child. Though she divulged the entire details to her family members they advised her to Crl.MC.No. 1773 of 2016 3 keep her mouth shut. She brought the child up and managed to give her hand in marriage to a man. The marriage was solemnized about 2½ years prior to the lodging of the F.I.statement. He did not contribute to the marriage and she had to bear the entire expenses. Her daughter was not prepared to accept the indifferent and callous attitude of the petitioner. She filed a petition before the Family Court, Nedumangad arraying the petitioner herein as respondent claiming past maintenance and marriage expenses. While contesting the proceedings, the petitioner is alleged to have spread certain false accusations against the de facto complainant and her daughter, which prompted her to come out in the open and lodge a police complaint, close to a quarter of a century after the alleged incident. 4. The learned counsel appearing for the petitioner would contend that the criminal proceeding is actuated by mala fides. He would urge with vehemence that the obnoxiously long delay of about three decades in coming up with such wild allegations would totally undermine the case of rape set up by the de facto complainant. The gross prejudice that would be caused to an accused in defending such allegations, which he terms as baseless, is also highlighted by the learned counsel. He would then invite the attention of this Court to the birth certificate of the daughter of the de facto complainant and Crl.MC.No. 1773 of 2016 4 he raised two points. According to him, the certificate would show that the father of the child is shown as Gopalan.G and the date of registration of the certificate is 13.1.1986. In this backdrop, he would refer to the letter issued from Leela Ravi Hospital, Venjarammoodu, which is produced along with the final report. This letter would show that Sumathy.P., W/o Gopalan G., Vettuvila P.O. Venjarammodu had delivered a female baby on 7.1.1986. He points out that Sumathy. P. is none other than the de facto complainant. Such sterling and uncontrovertible documents can be relied on by this Court in a petition under Section 482 and to support his proposition, he would rely on the decision of the Apex Court in **Rajiv Thapar and Others Vs. Madan Lal Kapoor** [(2013) 3 SCC 330]. According to the learned counsel, the above materials would clearly show that the petitioner herein is not the father of the child of the de facto complainant and it was one Gopalan. G. He would further argue that the date of birth of the child is shown as 7.1.1986 whereas the alleged incident of rape is on 13.3.1986. These documents would destroy the very edifice of the prosecution case and it is submitted that if the petitioner is ordered to undergo the ordeal of a trial, it would result in gross travesty of justice. 5. In view of the credible submissions advanced and taking Crl.MC.No. 1773 of 2016 5 note of the serious nature of the accusations, notice was issued to the de facto complainant. Though the same was served, there is no appearance. 6. The learned Public Prosecutor, on instructions, submitted that the reliance placed by the petitioner on the birth certificate and letter issued from the hospital cannot be sustained. According to the learned Public Prosecutor, in the course of investigation, the additional statement of the de facto complainant was recorded and in the said statement, she has stated that she was raped on 13.3.1985 and not on 13.3.1986. However, he has no explanation for the mentioning of one Gopalan.G. as the father of the daughter of the de facto complainant. 7. I have considered anxiously considered the submissions advanced and have gone through the entire records. 8. The incident of rape is alleged to have taken place on 13.3.1986. The law was set in motion only on 16.2.2014, after more than 2 ½ decades. In her statement to the police, she has alleged that in the year 2012, her daughter had filed a petition before the Family Court against the petitioner seeking various reliefs. After the filing of Crl.MC.No. 1773 of 2016 6 the petition before the Family Court, the petitioner appears to have taken a stand that he has no connection whatsoever with the de facto complainant. He also made certain comments which pained her. This, according to her, drove her to file a complaint after about two years from the institution of the petition before the Family Court. 9. In order to convince this Court that the allegations are meritless, the petitioner has mainly relied on the birth certificate of the daughter of the de facto complainant and also the letter from the hospital. In both the documents, the father of the child is mentioned as Gopalan G. Furthermore, there is gross discrepancy in the dates as well. In the birth certificate, which is produced as Annexure-B, the date of birth of the child is mentioned as 7.1.1986. At the same time, the 2[nd] respondent alleges that she was raped on 13.3.1986. Of course, she has later changed her version as is submitted by the learned Public Prosecutor. After including the name of one Gopalan.G. as the father of the child in the birth certificate, it would be far fetched for the de facto complainant to state after about 3 decades that the father was someone else. 10. The delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case or for Crl.MC.No. 1773 of 2016 7 doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a given case, if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. 11. The records show that daughter of the de facto complainant had instituted a petition before the Family Court seeking maintenance and marriage expenses. The petitioner contested the proceedings denying that he was not the father of the petitioner. It was after 2 ½ years after the filing of the said petition that the de facto complainant has come up with the complaint of rape. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. Crl.MC.No. 1773 of 2016 8 12. The inherent power under Section 482 of the Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. It is also well settled that FIR or the complaint can be quashed, if the allegations taken in entirely at their face value, prima-facie do not constitute any offence; if the allegations are absurd or inherently improbable; if there is any legal bar to the institution of such proceedings; and if the criminal proceeding is manifestly attended with mala fide and/or maliciously instituted with ulterior motive for wreaking vengeance, etc. (See **State of Haryana** v. **Bhajan Lal** 1992 Suppl. (1) SCC 335) 13. In **State of Karnataka** v. **L. Muniswamy and others** [(1977) 2 SCC 699], a three-Judge Bench of the Apex Court Court referred to Section 482 of the Code and in paragraph 7 (pg. 703) of the Report held as under : “7. …….. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the Crl.MC.No. 1773 of 2016 9 conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 14. Having considered the facts and after perusing the records, allowing the instant proceedings to continue against the petitioner would be nothing, but an abuse of the process of the Court. I am of the view that this is a fit case, wherein this Court will be justified in exercising its inherent powers under Section 482 to quash the proceedings against the petitioner. Crl.MC.No. 1773 of 2016 10 In the result, this petition is allowed. Annexure-A final report and all proceedings pursuant thereto against the petitioner now pending as C.P.No.88 of 2015 on the file of the Judicial First Class Magistrate-I, Nedumangad are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP **//TRUE COPY// P.A. TO JUDGE** Crl.MC.No. 1773 of 2016 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE FINAL REPORT NUMBERED AS CP.NO.88/2015 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMANGAUD, THRIUVANANTHAPURAM** **ANNEXURE B TRUE COPY OF THE BIRTH CERTIFICATE OF THE DAUGHTER OF THE 2ND RESPONDENT DATED 10.07.2015** ## **RESPONDENTS' EXHIBITS:** NIL