Lazar A.P. v. State of Kerala and Shibju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940** ## **Crl.MC.No. 7095 of 2017** **CRIME NO. 590/2017 OF ANTHIKAD POLICE STATION, THRISSUR** ## **PETITIONER/ACCUSED:** **LAZAR A.P., AGED 72 YEARS, S/O.PAULOSE, ARIMBOORTHURAYAN HOUSE, ANTHIKAD P.O., THRISSUR.** **BY ADVS. SRI.A.RANJITH NARAYANAN SMT.A.SIMI** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031, REPRESENTING THE SUB INSPECTOR OF POLICE, ANTHIKAD POLICE STATION, THRISSUR. 2 SHIBJU, AGED 41 YEARS, S/O.LAZAR A.P., ARIMBOORTHURAYAN HOUSE, ANTHIKAD P.O., THRISSUR-680641.** ## **OTHER PRESENT:** **PUBLIC PROSECUTOR SRI. D.CHANDRASEKHARAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:7095/2017 2 ## **ORDER** The petitioner is a septuagenarian. He finds himself arrayed as the accused in Crime No.590 of 2017 registered under Section 354A(1)(iii) of the IPC and Sections 11 and 12 of the Protection of Children from Sexual Offences Act, 2012. The aforesaid crime was registered based on a complaint filed by the minor grand children of the petitioner before the Women's Cell, Thrissur. 2. In their complaint, the children state that they have been residing for the past several years with the petitioner, his wife and their father. Their mother had left them about 10 years back and their father has been looking after them. According to the children, the petitioner repeatedly scolds them and makes sexually coloured remarks making their life miserable. He changes his clothes in their presence and exhibits his nudity. On more than one occasion, the petitioner is alleged to have urinated while the children were in the vicinity. According to the children, the presence of the petitioner in the house is a threat to their life and they requested that appropriate action be taken against him. Based on the complaint lodged as above, the instant crime was registered. 3. The contention of the petitioner is that the criminal CRL.MC:7095/2017 3 proceeding is manifestly attended with _mala fides_ . The lodging of the complaint, according to the petitioner, is the handiwork of his elder son, who has persuaded his minor children to level false accusations. He would point out that the petitioner is sick and ailing and has been living with his aged wife. He has two sons, the elder one being the father of the minor children. He has been arrayed as the 2[nd] respondent in this petition. His younger son is in Mumbai and he has been supporting the petitioner and his wife. He would point out that the relationship between him and his son has been strained from 2008 onwards. He would refer to Annexure-A2 complaint dated 16.09.2008 submitted before the Anthikad Police Station, wherein he has complained of the ill-treatment meted out to him and his wife by the 2[nd] respondent. It is pointed out that on 27.3.2015, he had filed a complaint before the Maintenance Tribunal under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and by order dated 7.8.2015, the 2[nd] respondent was ordered to pay a sum of Rs.3,000/- towards maintenance. He would state that after the passing of the order, the petitioner was physically manhandled and he had to approach the police and file Annexure-A6 complaint on 14.6.2017. In Annexure-A6 complaint, he has specifically stated that he was threatened by the 2[nd] respondent that a complaint would be CRL.MC:7095/2017 4 lodged against the petitioner using his minor children alleging abuse. On 15.6.2017, the petitioner was assaulted yet again and on 16.6.2017, he lodged Annexure-A7 complaint requesting intervention by the police. He would also refer to Annexure-A8 complaint lodged by his wife before the Superintendent of Police to substantiate his contention that the instant crime alleging sexual abuse lodged against him by his grand daughters is clearly based on cooked up allegations and levelled with the sole objective of harassing him. 4. Notice was issued to the 2[nd] respondent to get his response. Though the same was served, he has not entered appearance. 5. The learned Public Prosecutor was directed to file a statement of the Investigating officer. In the statement dated 12.12.2018 filed by the Station House Officer, it has been stated that the investigation has revealed that the father and mother of the victims have constantly tortured the aged petitioner and his wife. He further states that a sum of Rs.4,000/- was ordered by way of maintenance by the Tribunal, but not even a single paise was paid by the son of the petitioner. Without doing that, he mortgaged the residential home of the petitioner and obtained a loan. The creditor obtained an attachment and the petitioner had to pay large sums of CRL.MC:7095/2017 5 money to avoid the attachment. The investigation appears to have revealed that the children were persuaded by their father to level false and frivolous accusations against the petitioner. It is further stated that the son of the petitioner is involved in numerous crimes at the Anthikad Police Station and several persons have lodged complaints against him. 6. I have considered the submissions advanced. The minor children have been staying in the residential home of the petitioner. The records reveal that numerous complaints have been lodged against the father of the victims by the petitioner before various forums. He has also obtained an order from the Maintenance Tribunal as per which, he is entitled to receive a sum of Rs.4,000/- from his son. It is borne out from the records that not even a single paise has been paid till date. The allegation now raised by the children is that the petitioner had abused them and had changed his clothes in their presence. They have also alleged that he urinated while they were standing nearby. There is no case for the victims that the petitioner had touched their body or had committed any act of sexual assault. The petitioner is the grand father of the children and he is almost 80 years old. The sequence of events would reveal that the relationship CRL.MC:7095/2017 6 between the petitioner and his son is very bitter. The report of the investigating officer reveals that the son of the petitioner is a hardened criminal. In Annexure-A6 complaint lodged before the Police on 14.06.2017, he had expressed his apprehension that he would be implicated in a false case by his own son by using his minor daughters. 7. The inherent power has to be exercised sparingly and cautiously only when such exercise is justified by the tests laid out in the section namely, to give effect to the order under the Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. The power can be exercised _ex debito justitiae_ to do real and substantial justice for the administration of which court exists. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings 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 CRL.MC:7095/2017 7 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 not to be administered according to laws made by the legislature. (See **State of Karnataka** v. **L.Muniswamy and others** [1997 (2) SCC 699]). 8. In **Vineet Kumar and Ors.** v. **State of Uttar Pradesh and Anr.** [(2017) 13 SCC 369], the Apex Court has observed as follows: "Inherent power given to the High Court under Section 482 Cr.P.C is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under CRL.MC:7095/2017 8 Section 482 Cr.P.C and quashed the criminal proceedings." 9. Having gone through the sequence of events and the nature of allegations, it is clear that criminal proceedings have been initiated against the petitioner to spite him and to harass him for initiating proceedings against his own son. The prosecution case is mala fide, untenable and is for the purpose of harassing the petitioner. I have no doubt that this is an eminently fit case where this Court will be justified in quashing the criminal proceedings against the petitioner to prevent abuse of process of the court. In the result, this petition will stand allowed. Annexure-A1 FIR in Crime No.590 of 2017 and all proceedings pursuant thereto against the petitioner are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ //true copy// P.A. TO JUDGE CRL.MC:7095/2017 9 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A1**|**CERTIFIED COPY OF THE F.I.R. DATED 22-06-**| ||**2017 IN CRIME NO.590/2017 OF ANTHIKAD**| ||**POLICE STATION.**| |**ANNEXURE A2**|**TRUE COPY OF THE RECEIPT NO.699/PTN/08**| ||**DATED 16-09-2008 ISSUED BY THE ANTHIKAD**| ||**POLICE STATION.**| |**ANNEXURE A3**|**TRUE COPY OF THE PETITION DATED 27-03-2015.**| |**ANNEXURE A4**|**TRUE COPY OF THE NOTICE DATED 30-06-2015.**| |**ANNEXURE A5**|**TRUE COPY OF THE ORDER DATED 07-08-2015 IN**| ||**PROCEEDING NO.C2-4061/2015 PASSED BY THE**| ||**LEARNED MAINTENANCE TRIBUNAL AND RDO,**| ||**THRISSUR.**| |**ANNEXURE A6**|**TRUE COPY OF THE POLICE COMPLAINT DATED 14-**| ||**06-2017 ALONG WITH ITS RECEIPT.**| |**ANNEXURE A7**|**TRUE COPY OF THE COMPLAINT DATED 16-06-**| ||**2017.**| |**ANNEXURE A8**|**TRUE COPY OF THE COMPLAINT PREFERRED BY THE**| ||**PETITIONER'S WIFE BEFORE THE S.P. ALONG**| ||**WITH THE RECEIPT DATED 23-06-2017.**|