M. Haridasan and Vasudevan v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** **Crl.MC.No.7313 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CC 457/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS , HARIPAD CRIME NO.1704/2015 OF Kareelakulangara Police Station , Alappuzha** ## **PETITIONERS:** |**1**|**M.HARIDASAN**| |---|---| ||**AGED 68 YEARS,**| ||**SON OF LATE K. MADHAVAN,**| ||**MANNOOR THEKKETHIL,**| ||**MUTTOM P.O, HARIPAD 690 511,**| ||**ALAPPUZHA DISTRICT**| ||**(NOW RESIDING AT P-2/61,SILVERLAWNS,**| ||**SANTHI NAGAR,EDAPPALLY,**| ||**ERNAKULAM, KOCHI 682 024**| |**2**|**VASUDEVAN**| ||**AGED 63 YEARS,**| ||**RESIDING AT KADOOR THEKKATHIL,**| ||**MUTTOM P.O HARIPAD 690 511,**| ||**ALAPPUZHA DISTRICT**| ||**BY ADVS.**| ||**SRI.TPM.IBRAHIM KHAN (SR.)**| ||**SMT.P.J.RAZIA BEEVI**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM, KOCHI 682 031**| |**2**|**THE SUB INSPECTOR OF POLICE**| ||**KAREELAKULANGARA POLICE STATION,**| ||**ALAPPUZHA DISTRICT 690 513**| |**3**|**D.SUNIL KUMAR**| ||**AGED 46 YEARS, SHRI DIVAKARAN,**| ||**RESIDING AT AMMINI BHAVANAM,**| ||**MUTTOM P.O,HARIPAD,**| ||**ALAPPUZHA DISTRICT 690 511**| Crl.MC.No.7313 OF 2017 2 **R1, R3 BY ADV. SMT.G.BINDU R1 BY ADV. SRI.M.V.BALAGOPAL R1 BY ADV. SRI.M.R.HARIRAJ R1 BY ADV. SRI.P.A.KUMARAN R1 BY ADV. SMT.M.K.LEELA R1 BY ADV. SRI.K.RAJAGOPAL** ## **OTHER PRESENT:** **SRI. BINEESH. E.C. (P.P.)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 0607-2020, THE COURT ON 10-07-2020 PASSED THE FOLLOWING:** Crl.MC.No.7313 OF 2017 3 ## **Dated this the 10[th] day of July, 2020** ## **O R D E R** The petitioners are A1 and A2 in C.C.No.457/2016 on the file of JFCM-I, Harippad. They seek to quash Annexures A5 and A11 final reports laid for offences punishable under Sections 447 and 427 read with Section 34 IPC by Sub Inspector of Police, Kareelakulangara, on the motion of de facto complainant who is the 3rd respondent herein. 2. The 1st accused is the owner of a piece of land adjacent to the property possessed by the 3rd respondent. The 2nd accused is a helper of the 1st accused. The common allegation in both final reports is to the effect that on 10.12.2015 at 10 a.m., the petitioners sharing their common intention criminally trespassed upon the courtyard of 3rd respondent's house called Ammini Bhavanam, and committed mischief to the sapling of a Crl.MC.No.7313 OF 2017 4 mango tree and of a coconut tree using pesticide and further damaged his boundary stone causing a loss of Rs.5,500/-. The grounds on which the petitioners have sought quashment of Annexures A5 and A11 final reports are the following; _(i) There was in fact no incident of mischief or trespass as alleged by 3rd respondent and the final reports are nothing but the outcome of a fabricated story invented by the Sub Inspector of Police, Kareelakulangara, in conspiracy with the 3rd respondent in order to take revenge upon the 1st petitioner for the reason that he had sent to DGP two complaints against the Sub Inspector for his inaction to proceed against 3rd respondent following his misconduct to the caretaker of 1st petitioner's property._ _(ii) No fair or proper investigation was conducted in the matter and no effective steps were also taken to ascertain the complicity of the petitioners in the crime. The 2nd respondent Sub Inspector of Police even went to the extent of creating false evidence so as to help the_ Crl.MC.No.7313 OF 2017 5 _3rd respondent. On 14.12.2015 when the scene mahazar as to the alleged mischief was prepared, the 3rd respondent was not physically present and his absence from the place was proved by Annexure A10, the extract of attendance register issued by the authorities of the School where 3rd respondent is employed as School teacher._ _(iii) No scientific investigation was also undertaken in this case to ascertain whether pesticide was used for causing the alleged mischief to the trees. Further, the statements of witnesses recorded before the institution of Annexure A5 final report and during the course of further investigation are mutually contradictory._ _(iv) Annexure A5 final report has no legal force in as much as the State Police Complaint Authority by its Annexure A4 order, held the prosecution in C.C. No. 457/2016 to be misconceived and unsustainable in the eyes of law. The Sub Inspector of Police, Kareelakulangara, despite being directed to delete the name of the 1st petitioner from Annexure A5, failed to carry out_ Crl.MC.No.7313 OF 2017 6 _the direction in Annexure A4 order._ _(v) The Sub Inspector of Police, Kareelakulangara, who prepared Annexure A11 final report failed to seek leave of the Court before undertaking further investigation and consequently the report filed without permission of the Court being illegal, the court below should not have acted upon the said report at all._ 3. On the whole, the contention of the petitioners is to the effect that continuance of proceedings in C.C.No.457/2016 on the file of JFCM-I, Harippad, is abuse of the process of court and therefore, both the final reports are liable to be quashed. 4. I have heard the learned counsel for the petitioners, the learned counsel for the 3rd respondent and also the learned Public Prosecutor. 5. It is true that the 1st petitioner had sent complaints against Sri.Sudhilal, the Sub Inspector of Police, Kareelakulangara, to D.G.P. on 6.7.2015 and on Crl.MC.No.7313 OF 2017 7 21.7.2015 before the alleged date of occurrence, alleging that there was inaction on his part in not looking into the allegation of misconduct made against 3rd respondent towards the caretaker of 1st petitioner. For the sole reason that there were complaints made to the Superior Officer of the Sub Inspector, it cannot be simply assumed that he acted in vengeance against the 1st petitioner unless there are materials on record to draw an inference in favour of false implication. 6. It is one of the contentions of the petitioners that Annexure A5 final report is quite unsustainable under law since the State Police Complaint Authority by Annexure A4 order, held the entire prosecution as against the petitioners to be misconceived and not tenable in the eyes of law. Annexure A4 order further shows that a direction was given to Sub Inspector of Police, Kareelakulangara, even to strike out the name of first petitioner in C.C.No.457/2016 with the leave of the Crl.MC.No.7313 OF 2017 8 concerned Court. This direction was not implemented in the manner as directed by the order. It is noticed that Sri. Sudhilal, Sub Inspector of Police was not made a party to the proceedings before the complaints Authority in his personal capacity. He did not get an opportunity to contest the case against him. He had been already transferred from Kareelakunlangara. The Sub Inspector of Police, Kareelakunlangara who succeeded him also did not contest the proceeding presumably because the misconduct alleged did not concern him. Looking at Annexure A4 order, I fail to understand as to how an order holding the criminal prosecution as against the petitioners to be misconceived could have been passed by the State Police Complaint Authority under law. Whether or not it was challenged by the Sub Inspector before any Authority, it is nonest under law. Going by Section 110 of the Kerala Police Act, 2011, the only power vested with the Complaint's Authority is to hold inquiry into the alleged Crl.MC.No.7313 OF 2017 9 misconduct of an erring Police Officer of a certain rank and make requisite recommendations before the Government. It could have never gone to the extent of assailing the prosecution as misconceived or untenable in the eyes of law in a manner prejudicing the complainant, that law, without individual notice to him. The decision reported in **Rajendran Pillai v. State Police Complaints Authority and ors. (MANU/KE/2723/2019)** cited before me seeking to support the argument of the learned counsel for the petitioner, has no relevance to the facts of the case at hand. The contention therefore, that Annexure A5 final report laid against petitioners was legally not sustainable and should not have been acted upon by the learned Magistrate does not merit acceptance. 7. Annexure A5 case was, however, re-opened as per the direction of DySP Kareelakulangara and further investigation was undertaken in the matter. That was how Annexure A11 final report came into vogue. It is clear from Crl.MC.No.7313 OF 2017 10 Annexure A11 that further investigation was conducted by the Sub Inspector of Police, who succeeded Sri. Sudhilal as per the orders issued by Dy.S.P., Kayamkulam. 8. It is contended by the learned counsel for the petitioners that even Annexure A11 final report is illegal and not sustainable in the eyes of law since it was brought into existence without the knowledge and permission of the concerned court. In this respect the learned counsel for the petitioners relied on a decision reported in **Vinay Tyagi v. Irshad Ali @ Deepak & ors. (2013(5) SCC 762)** which held that the practice of investigating officers seeking permission of the court before undertaking further investigation under Section 173(8) of the Cr.P.C. is legal and indicates a healthy practice. But no where in the decision cited, the Apex Court has laid down that conduct of further investigation without obtaining leave of the court is illegal enough to render the supplementary report invalid and nonest. Going by Section 173(8) of the Cr.P.C., Crl.MC.No.7313 OF 2017 11 it is obviously clear that despite the final report having been filed also, it is within the absolute power of the Police Officer to hold further investigation into the matter, provided there are grounds justifying such investigation. The copy of the daily proceedings of the learned Magistrate in C.C.No.457/2016 handed over to me by the learned counsel for the 3rd respondent shows that further investigation was undertaken by the Sub Inspector of Police, Kareelakulangara, only with information to the Court and acting upon the information, the Court also waited for completion of the investigation. The Court must be deemed to have granted permission by implication since otherwise it would not have stopped the proceedings waiting for the final report. The contention that Annexure A11 report came into existence without the knowledge of the court is factually erroneous. Nothing therefore, in my view, renders the Annexure A11 final report illegal. 9. The contention that Sub Inspector of Police, Crl.MC.No.7313 OF 2017 12 Sri. Sudhilal was not fair enough in conducting investigation of the crime, is not supported by any materials. It could be seen from Annexure A5 report itself, the investigation was not completed by him but A.S.I. of Police, Kareelakulangara, and the role of Sri.Sudhilal was confined to registration of FIR alone. 10. The scene mahazar prepared on 14.12.2015 was by A.S.I. It is stated to have been drawn in the physical presence of the 3rd respondent who, according to the petitioners, was in fact not present at the scene of occurrence and was, on the other hand, engaged in the School where he was employed about 70 kms away. Contention, therefore, is that false evidence was brought forth by the Sub Inspector to help the 3rd respondent. This is clearly belied by the statement of the Principal of the School, who on being questioned in the course of further investigation, stated to the investigating officer that the 3rd respondent left the School in the forenoon of the day Crl.MC.No.7313 OF 2017 13 itself after getting permission of the authorities. 11. So also looking at the statements given by witnesses, it is clear that they spoke to the alleged act of trespass upon the land of 3rd respondent as well as of the mischief. The witnesses said that petitioners entered into the property and used pesticide on the sapling of mango and coconut tree and foul smell of the drug was experienced by them also. I do not think that in order to prove the allegation of mischief of this nature, the police should have undertaken any scientific investigation at all. The learned counsel for the petitioners in this context pointed out that the same witnesses while subsequently questioned during further investigation, contradicted their former statements given before the A.S.I. of Police. I am not in a position to find that there exist any contradictions. Formerly the witnesses only stated that pesticides were seen sprinkled on the saplings. In their subsequent statements, they added that besides hand Crl.MC.No.7313 OF 2017 14 sprinkling, spraying machine was also used by the petitioners. This, in any view, cannot be said, at this stage, to be a contradiction on which the reliability of the witnesses could be tested. 12. Even assuming that there existed any sort of contradictions between the two final reports also, as to how the matter shall be dealt with in such situations, has been succinctly stated by the Honorable Supreme Court in **Vinay Tyagi's case (supra)** in paragraph 39 of the judgment. From Annexure A11 it is transparently clear that it came into existence following the completion of further investigation of the crime and therefore itself, this report could only be imputed with the status of a supplemental report having all the characteristics features of a report under Section 173(2) of the Cr.P.C. It is not the law that whenever a supplementary report is filed, the former report vanishes or ceases to exist as if one merges with the other. Both the reports have to co-exist as both Crl.MC.No.7313 OF 2017 15 have relevance so far as the Court which has already taken cognizance on the first report is concerned. It is for the concerned court, which is seized of the materials before it, to consider the precise accusation for which the offendor before it could be ordered to be tried while proposing to fame the charge or record the plea of the accused. This legal position could be deciphered from **State v. Gopakumar (1988 (1) KLT 924)** also. In any view of the matter, there is no scope for accepting the contention of the petitioners that only either of the reports could at any rate stand under law. 13. On appreciation of entire materials before me, I am satisfied that there is prima facie case for proceeding against the petitioners on the totality of materials furnished by Annexures A5 and A11 final reports. None of the contentions urged in support of quashment of Annexures A5 and A11 is tenable and capable of acceptance. The prayer for quashment therefore, is liable Crl.MC.No.7313 OF 2017 16 to be dismissed. In the result, this Crl.M.C. is dismissed. The learned Magistrate will proceed against the petitioners on the charges of Sections 447 and 427 r/w Section 34 IPC after recording their plea and decide the case in accordance with law without being prejudiced by any of the observations made by this Court in this order. I make it clear that I have not expressed anything on merits of the case and the whole discussion was made only for the limited purpose of deciding this proceedings for quashment. It will be open to the petitioners to raise all defences available under law before the learned Magistrate who shall decide the case strictly in accordance with facts, evidence and law involved in the matter. All pending interlocutory applications are closed. **(Sd/-) T.V.ANILKUMAR JUDGE** LU/10.07.2020 Crl.MC.No.7313 OF 2017 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A PHOTOSTAT COPY OF THE COMPLAINTS DATED 06-07-2015 AND 21-07-2015 FILED BY THE FIRST PETITIONER THROUGH EMAIL BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM ANNEXURE A2 A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 1704/2015 FILED BY THE 2ND RESPONDENT-SUB INSPECTOR OF POLICE, KAREELAKULANGARA POLICE STATION BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I,HARIPAD ANNEXURE A3 A PHOTOSTAT COPY OF THE COMPLAINT DATED 0807-2016 FILED BY THE FIRST PETITIONER BEFORE THE STATE POLICE COMPLAINT AUTHORITY, THIRUVANANTHAPURAM ANNEXURE A4 A PHOTOSTAT COPY OF THE ORDER DATED 26-082016,PASSED THE STATE POLICE COMPLAINT AUTHORITY, THIRUVANANTHAPURAM IN O.P NO 306/2016 ANNEXURE A5 A TRUE COPY OF THE FIRST CHARGE DATED 3001-2016 ON FIR NO 1704/2015 DATED 13-122015 OF KAREELAKULANGARA POLICE STATION FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1,HARIPAD ANNEXURE A-6 A PHOTOSTAT COPY OF THE APPLICATION DATED 20-07-2017 FILED BY THE FIRST PETITIONER IN THE PRESCRIBED FORM A PHOTOSTAT COPY OF THE APPLICATION DATED ANNEXURE A-7 22.09.2016 BEFORE THE DISTRICT SUPERINTENDENT OF POLICE, ALAPPUZHA ANNEXURE A-8 A PHOTOSTAT COPY OF THE LETTER NO G1(C) 47550/2017/A DATED 22-08-2017 ISSUED BY THE DEPUTY SUPERINTENDENT OF POLICE , ALAPPUZHA ANNEXURE A-9 A PHOTOSTAT COPY OF THE LETTER NO** Crl.MC.No.7313 OF 2017 18 **1272/2017/GC DATED 22-08-2017 SENT BY THE POLICE INSPECTOR, KAYAMKULAM** **ANNEXURE A-10** **ANNEXURE A-11** **A PHOTOSTAT COPY OF THE LETTER NO F1/RTI18/2016 DATED 15-11-2016 ISSUED BY THE PRINCIPAL OF THE GOVERNMENT HIGHER SECONDARY SCHOOL, THIRUNALLOOR UNDER RIGHT TO INFORMATION ACT ALONG WITH RELEVANT EXTRACT OF THE ATTENDANCE REGISTRER FOR THE MONTH OF DECEMBER, 2015** **A PHOTOSTAT COPY OF THE REVISED CHARGE SHEET IN F.I.R NO 1704/2015 DATED 17-042017 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURTI,HARIPAD ALONG WITH ITS DOCUMENTS** // True Copy // PA To Judge