K. T. James v. State of Kerala and others

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT ``` ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE29[TH]DAYOFMAY2023/8THJYAISHTA,1945 CRL.MCNO.225OF2021 AGAINSTTHEORDERINCC380/2019OFJUDICIALFIRSTCLASS MAGISTRATECOURT,TRIPUNITHURA ``` ``` PETITIONER/FIRSTACCUSED: ``` ``` K.T.JAMES AGED60YEARS S/O.K.J.THOMAS,KAVUMPURATHHOUSE,KADANAD, NEELOORP.O.,PIN-686651(FORMERSECRETARY, TRIPUNITHURAMUNICIPALITY) BYADVS. ABRAHAMP.GEORGE SMT.M.SANTHY ``` ## `RESPONDENTS/STATE, COMPLAINANT AND ACCUSED 2, 3 AND 4:` ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOFKERALA, ERNAKULAM. 2ADV.A.C.RAVEENDRAN, POTTATHILHOUSE,EROORSOUTH,TRIPUNITHURAP.O., PIN-682306. 3PRESIDENT, SDKYPOTTAYILTEMPLE,EROORSOUTH,TRIPUNITHURA, PIN-682306. 4SEBASTIAN, BUILDER,ANADTOWER,KALOOR,KOCHI-682017. 5THESECRETARY, PRIYAMATHURIFLAT,EROORSOUTH,TRIPUNITHURA, PIN-682306. SRI.SAJEEVKUMARK.GOPAL SRI.TRRENJITH,SRPP ``` 2 Crl.M.C No.225 of 2021 ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 29.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` 3 Crl.M.C No.225 of 2021 ## **ORDER** The petitioner herein is arrayed as the 1st accused in C.C.No.380/2019 on the file of the Judicial Magistrate of the First Class, Thrippunithura. In the aforesaid case, he is accused of having committed offenses punishable under Section 120B, 270, 277, and Section 430 of the IPC. 2. Short facts of the case are as under: The de facto complainant is a lawyer by profession. The petitioner herein was the former Secretary of the Tripunithura Municipality. The accused No. 2 in the complaint is the president of the Pottayil temple, No. 3 is the builder, and No. 4 is the Secretary of Priya Mathuri Flat. The de facto complainant alleges that the Priya Mathuri Flat, comprising eight units, has been constructed on an item of property having an extent of 10 cents illegally. The building permit granted to the apartment is not a valid legal document, and the construction is unauthorized and illegal. The solid waste generated by the residents of the apartment is released without treating the same. The drain constructed by the apartment owners to drain out water is without securing a permit and, therefore, unauthorized. Filthy water is flushed out into the drain, causing inconvenience and health hazards to the residents of the locality, which include the defacto complainant. 4 Crl.M.C No.225 of 2021 3. The learned Magistrate recorded the statement of the 2nd respondent and took cognizance of the offense. 4. Notice was issued to the de facto complainant, and the same was served. He has not appeared either in person or through counsel. 5. The learned counsel appearing for the petitioner submits that the complaint does not disclose any offensive act committed by the petitioner. The petitioner was the Secretary of the Tripunithura Municipality for the period from 20.06.2013 to 05.11.2016. According to the learned counsel, the petitioner has been arrayed in his individual capacity and not as the Secretary of the Municipality. 6. I have considered the submissions advanced. 7. I find that in the complaint, there is no specific allegation against the petitioner. The petitioner is arrayed in his individual capacity, though it is mentioned that he was the former Secretary of the Tripunithura Nagarasabha. As submitted by the learned counsel, he was the Secretary of the Tripunithura Municipality for the period from 20.06.2013 to 05.11.2016. The complaint was lodged on 13.02.2017, much after his service ended. There appears to be considerable merit in the submission of the learned counsel appearing for the petitioner that the petitioner herein, a former officer of the Nagarasabha, had nothing to do with the allegations levelled in 5 Crl.M.C No.225 of 2021 the complaint, as he had demitted from his office much prior to the lodging of the complaint. There is no specific assertion in the complaint that the petitioner, in his capacity as the Secretary of the Nagarasabha, had committed any act or omission warranting the initiation of criminal proceedings against him. 8. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offenses to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **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 > 1 [1992 Supp (1) SCC 335 6 Crl.M.C No.225 of 2021 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 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. 7 Crl.M.C No.225 of 2021 - (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. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 9. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of the view that the uncontroverted allegations made in the complaint do not disclose the commission of any offense by the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under section 482 of the Code to quash the criminal proceedings against the petitioner. Resultantly, this petition is allowed. All proceedings against the petitioner in C.C.No.380/2019 on the file of the Judicial First Class Magistrate Court, Tripunithura, will stand quashed. Sd/- Sru ## **RAJA VIJAYARAGHAVAN V JUDGE** 8 Crl.M.C No.225 of 2021 ## `APPENDIX OF CRL.MC 225/2021` ``` PETITIONERANNEXURES ANNEXUREA1CERTIFIEDCOPYOFTHECOMPLAINTDATED 13.2.2017INCCNO.380/2019INTHEFILEOF THEJUDICIALFIRSTCLASSMAGISTRATECOURT, TRIPUNITHURA. ``` ``` ANNEXUREA2CERTIFIEDCOPYOFTHESTATEMENTDATED 1.3.2017INCMPNO.187/2016INTHEFILEOF THEJUDICIALFIRSTCLASSMAGISTRATECOURT, TRIPUNITHURA. ```