K.P. Muhammedali v. Sub Inspector of Police, Sreekandapuram; The Superintendent of Police, Kannur; The Secretary to Government, Home Department, Thiruvananthapuram; State of Kerala, represented by Public Prosecutor, High Court, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 Crl.MC.No. 3152 of 2006() ------------------------ANNEXURE-I F.I.R IN CRIME NO.73 OF 1994 OF SREEKANDAPURAM POLICE PETITIONER: ACCUSED -------------------- K.P.MUHAMMADALI, S/O. ABDUL KHADER, KOOTTUMUGHAM, SREEKANDAPURAM, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN ## RESPONDENTS: COMPLAINANT ------------------------- 1. SUB INSPECTOR OF POLICE, SREEKANDAPURAM. 2. THE SUPERINTENDENT OF POLICE, KANNUR. 3. THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## ------------------------------------ ## Crl.M.C No.3152 of 2006 ## ------------------------------------Dated this the 24[th] day of June, 2008 ## ORDER This petition h as been filed under Section 482 Cr.P.C by the petitioner/accused in Crime No.73 of 1994 of Sreekandapuram Police Station to invoke the extraordinary inherent powers available with this Court to quash the F.I.R registered against him. 2. There is a long history behind this case. A fax message was received by the Superintendent of Police, Kannur raising allegations of offences committed in Doha under Sections 465, 380 and 381 I.P.C. The fax statement was received and the F.I.R was registered on 18.06.1994. In that, allegations are raised that the petitioner, who is alleged to be a houseboy of the defacto complainant, had allegedly decamped from the house clandestinely carrying with him gold ornaments, cash etc. It is also further alleged that documents were forged by him to secure his escape from the said country. That alleged incident had taken place on 12.05.1994 as per the fax report. F.I.R was registered on 18.06.94. The petitioner was arrested on 19.06.94. He was released on bail on 22.07.94, till which day he continued in custody. After his arrest, costly gold ornaments, cash etc. were recovered from the residential premises of the petitioner. Crl.M.C No.3152 of 2006 2 3. From 1994, we are now in 2008. Till now the Investigation has not made any headway. The petitioner had come to this Court with this petition on 05.10.06. Repeated directions for expeditious completion of investigation were issued from time to time by various Benches of this Court which had occasion to deal with the case. 4. The situation at the moment is indeed surprising. So far genuineness of the fax message has not been ascertained. The defacto complainant has not been questioned at all. The defacto complainant is no more, submits the learned Public Prosecutor at the Bar. The defacto complainant's son in law, who it is seen from the fax message, has also been joined as a complainant has also not been contacted. That person's statement has also not been recorded at all. Investigation is limping through. 5. At one stage, a final report was filed showing both the complainant/father in law as also the son in law who had joined the fax message as witnesses even though their statements were not recorded at all. That final report was not accepted and acted upon. It was returned. In spite of peremptory directions issued by this Court by interim orders from time to time, investigation has not been completed. Nay, as the counsel for the petitioner Crl.M.C No.3152 of 2006 3 submits, the real investigation has not commenced so far in that the genuineness of the fax message has not been ascertained and the complainants father/son in law have not been questioned and their version ascertained so far. 6. The petitioner has a totally different version to advance. According to him the costly articles were brought by him to India and they belong to him. They were given to him by his employer. Certain envious co-workers had ensued that a false fax message had been sent to the police with the transparent intention of vexing and harassing him. They appear to have been successful. The petitioner was obliged to remain in custody even without and before verifying the genuineness of the fax message though 14 years of the prime part of his life has been wasted in the pursuit of this prosecution. Not even the version of the complainant has been ascertained to confirm that he has such a grievance. Costly articles which belong to the petitioner have remained in the custody of the police/court with no semblance of material to suggest that the petitioner is guilty of any offence. 7. The passport of the petitioner was seized at the time of his arrest and the same also remained in the custody of the police. It was not returned to him. Long later as per the interim order dated 21.02.08, another Bench had directed that the Crl.M.C No.3152 of 2006 4 passport be returned to him. Along with that final directions were issued that within 3 months as a last chance investigation must be completed and the final report must be filed. 8. The learned counsel for the petitioner submits that the petitioner has waited sufficiently long. His right to life guaranteed under Article 21 of the Constitution of India has been adversely and prejudicially affected by this unending persecution in which even the genuineness of the complaint or version of the complainant has not been ascertained yet. The petitioner is a poor person and envious co-workers had clandestinely and with ulterior motives, initiated the criminal adjudicatory processes against him. The end of the investigation not in sight even though a period of 1 1/2 decades have by now elapsed. It is, in these circumstances, prayed that the powers under Section 482 Cr.P.C may be invoked and the investigation may be brought to termination and the petitioner relieved of this agony and trauma. 9. The learned Public Prosecutor on the contrary submits that the investigator had done all that was possible to complete the investigation. It is true that the F.I.R was registered on 18.06.94. We are in 2008. In spite of the best efforts of the investigating agency, investigation could not be completed. The learned Public Prosecutor fairly concedes that the genuineness of Crl.M.C No.3152 of 2006 5 the fax report has not been ascertained yet. It is further submitted that the version of the defacto complainant has also not been ascertained so far. He has expired, it is submitted though the date of death is not indicated. The version of his son in law who is said to have joined the fax message has not been ascertained or recorded yet. 10. The learned Public Prosecutor submits that the Doha police also appears to have registered a crime. But no further or better details of the said crime are available. Investigators from Doha had neither come to India nor had they made any attempt to ascertain the details of the investigation that is taking place here. Except the fax report, which has been reckoned as the F.I statement, there is no other or better material whatsoever to even remotely suggest the complicity of the petitioner. 11. The learned counsel for the petitioner, in these circumstances, places reliance on the decisions of the Supreme Court in **State of Andhra Pradesh v. P.V.Pavithran** [(1990) 2 S.C.C 340 = (A.I.R 1990 S.C 1266)], **Abdul Rehman Antulay v. R.S.Nayak and another** [(1992) 1 S.C.C 225], **P.Ramachandra Rao v. State of Karnataka** [(2002) 4 S.C.C 578 = A.I.R 2002 S.C 1856]. He further relies on **Oommen Koshy v. State of Kerala** [1989 (2) KLT 384] and **Dr.Louis Pulickal v. State of** Crl.M.C No.3152 of 2006 6 **Kerala** [1997 (2) KLT 233] and contends that the facts of the instant case must convince the Court that the inordinate delay in the investigation and the stage of the investigation after elapse of more than 14 years of investigation must persuade this Court to invoke the jurisdiction under Section 482 Cr.P.C. 12. I have considered all the relevant inputs. I have also considered the submissions of the learned Public Prosecutor that if 3 months' further time were granted, the police shall be in a position to at least get the answers to the questions raised in the letter of request under Section 166 A Cr.P.C. They will then be able to close the case, it is further submitted. 13. But having considered all the relevant circumstances, I am of opinion that no further time can or need be granted to the police to complete the investigation. In coming to this conclusion, I have taken note of all the relevant circumstances including the efforts made in the investigation so far and the stage of investigation. I have taken note of the hard plight of the petitioner over whose head the sword of this prosecution has been hanging for the last 14 years. In any view of the matter, I am satisfied, that the powers under Section 482 Cr.P.C can, must and ought to be invoked to put to an end this unending trauma suffered by the petitioner. The fact that there was some delay on Crl.M.C No.3152 of 2006 7 the part of the Magistrate in dealing with the application to forward the letter of request under Section 166 A Cr.P.C or the fact that the police officer in charge of the Police Station had made certain attempts belatedly to commence the investigation or even the fact that he had filed an earlier pedestrian final report do not persuade me not to invoke such powers at this distant point of time. 14. The learned Public Prosecutor submits that there are certain circumstances which would indicate the complicity of the petitioner. The recovered gold ornaments are not declared by him to the authorities when he allegedly brought them from his place of employment abroad. The gold ornament seized were found buried in the earth inside the kitchen from where they were seized. The petitioner had prevaricated to the police as to how the ornaments came into his possession. In these circumstances if the investigation were terminated now the petitioner would be able to claim unjust enrichment, it is contended. 15. The investigation so far has not revealed any material to infer complicity of the petitioner. In these circumstances, ordinarily and normally the articles recovered will have to be returned to the petitioner. Different would be the situation if there is a better claimant who comes forward with a valid claim. Crl.M.C No.3152 of 2006 8 No such person has so far come before the court. I am satisfied that the interests of justice will be served eminently by directing that the seized articles shall not be returned to the petitioner for a period of six months from this day. In the meantime, if there be any claimant, such claims shall be considered in accordance with law viz a viz the claim of the petitioner for return of the articles. If there be any such claimants release of the seized articles shall be as per the orders to be passed by the learned Magistrate on such claim. If there is no such claimant, on expiry of the period of six months from this date, the articles seized shall be returned to the petitioner herein. 16. This Crl.M.C is, in these circumstances, allowed. All further proceedings in Crime No.73 of 1994 of Sreekandapuram Police Station is hereby quashed. The seized articles shall be dealt with as already directed above. ## **(R.BASANT, JUDGE)** rtr/-