Maxwel M. Chennoor v. The State of Kerala and Happy d/o E.K. Antoney

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **CRL.MC.NO.4555 OF 2017(H)** **CC 416/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR CRIME NO.1560/2009 OF NORTH PARAVUR POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **MAXWEL M. CHENNUR, AGED 55 YEARS,S/O.MICHEL J.CHENNOOR, CHENNUR HOUSE, VYDRAPADI, PALLIPURAM, ERNAKULAM. REPRESENTED BY POWER OF ATTORNEY JOSEPHMON, AGED 52 YEARS,CHENNUR HOUSE, VYDRAPADI, PALLIPURAM, ERNAKULAM.** **BY ADV. SMT.R.LEELA** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 HAPPY D/O E.K.ANTONEY, ELAMKUNNAPUZHA HOUSE, NAYARAMBALAM VILLAGE, KOCHIN, NOW RESIDING AT "GLORIA", NEAR ROTARY CLUB, REPUBLIC ROAD, NORTH PARAVUR-683513.** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------Crl.M.C. No. 4555 of 2017 ------------------------------------Dated this the 8[th] day of September, 2020 ## O R D E R The prayer in the above Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure, 1973, is as follows: _“..........pleased to call for records and quash Annexure-A1 charge sheet in CC No.416/2010 before the JFCM-I Court, North Paravur in Crime No.1560/2009 North Paravur Police Station, Ernakulam Dist and appropriate orders may be passed accordingly in the interest of justice.”_ ## 2. Heard Smt.R.Leela, learned counsel appearing for the petitioner and Sri.B.Jayasurya, learned Prosecutor appearing for R-1 (State). Though contesting respondent No.2 (lady defacto complainant) has been duly served, there is no appearance for that party. 3. The petitioner has been arrayed as the sole accused in Crime No.1560/2009 of N.Paravur Police Station, Ernakulam, for offences punishable under Secs. 341, 323 & 188 of the IPC, on the basis of the FIS conveyed by the 2[nd] respondent lady defacto complainant who is the wife of the petitioner. The police after investigation has filed the impugned Anx.A1 final report/charge Crl.M.C. No. 4555 of 2017 ..3.. sheet for the abovesaid offences which has now led to the pendency of C.C.No.416/2010 on the file of the JFCM-I, North Paravur. 4. The allegations raised by the 2[nd] respondent lady defacto complainant is that, on 13.11.2009 at about 8.30 pm the petitioner accused with intention to cause injury to the lady defacto complainant had hit her with folded fist and also pushed and slammed her in front of the gate of his building and had illegally confined her during the commission of said acts, and thereby he has committed the abovesaid offences punishable under Secs. 341, 323 & 188 of the IPC. It is said that the abovesaid acts have been committed by the petitioner when the 2[nd] respondent had secured the order of police protection and that therefore the offence as per Section 188 of the IPC is also involved in this case, etc. Whereas the case of the petitioner is that, he was employed abroad and his concern was only for the welfare of his family and he had been sending lavishly money as required by the 2[nd] respondent, which he later realized was being misused by her, and was being spent by her to support her paramour, and that later when he had refused to send any more money she has forcefully stayed back in the petitioner's house and started to initiate several proceedings Crl.M.C. No. 4555 of 2017 ..4.. against him including the abovesaid impugned criminal proceedings. Further that, the truth of the matter is other way round and that a counter case has been registered against the 2[nd] respondent herein as Crime No. 1564/2009 of N. Paravur Police Station, for offence punishable under Sec.324 of the IPC and the allegations therein had happened on 13.11.2009 at about 8.30 am that the 2[nd] respondent herein had assaulted and beaten the petitioner herein with her left palm and with bamboo stick, and that the police after investigation had filed the final report/charge sheet on 13.11.2009 before the JFCM-I, North Paravur, wherein the case is now pending as C.C.No. 299/2010, etc. 5. From the pleadings and materials on record it is seen that allegations and counter allegations are made by the petitioner and the 2[nd] respondent. Therefore the matter would require evidence and it is the case of the petitioner that the case pending as C.C.No. 299/2010 on the file of the JFCM-I, North Paravur, is the counter case in which the accused is the 2[nd] respondent herein and the defacto complainant therein is the petitioner herein, etc. However, there is one aspect to the matter which relates to the inclusion of offence as per Sec.188 of the IPC in the impugned Crl.M.C. No. 4555 of 2017 ..5.. Anx.A-1 final report/charge sheet. The said offence as per Sec.188 of the IPC has been included presumably on the premise that the abovesaid acts have been committed by the accused at a time when the 2[nd] respondent had secured the order of police protection and that so the said acts of the petitioner would amount to disobedience of the directions of the competent authorities concerned, and hence would disclose the offence as per Sec.188 of the IPC. ## 6. Sec.188 of the IPC reads as follows: _“_ _**188. Disobedience to order duly promulgated by public servant.** —Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A_ Crl.M.C. No. 4555 of 2017 ..6.. _knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.”_ 7. Sec.195 of the Cr.P.C. provides as follows: ## _“_ _**195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.**_ _(1)No Court shall take cognizance-_ _(a)(i) of any offence punishable under sections 172 to 188_ _(both inclusive) of the Indian Penal Code (45 of 1860 ), or_ _(ii) of any abetment of, or attempt to commit, such offence, or (iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;_ _(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or_ _(ii)of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or_ _(iii)of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate._ _(2)Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded._ _(3)In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section._ Crl.M.C. No. 4555 of 2017 ..7.. _(4)For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-_ _(a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;_ _(b)where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”_ 8. It can be seen from a mere reading of Sec.195(1)(a) of the Cr.P.C. that, it has been mandated therein that no court shall take cognizance of any offence punishable under Secs.172 to 188 (both inclusive) of the IPC, except on a complaint in writing of a public servant concerned or of some other public servant to whom he is administered as subordinate. Hence, the abovesaid mandatory provisions contained in Sec.195 of the Cr.P.C. is a statutory bar whereby the sole method for taking cognizance of the offence as per Sec.188 of the IPC by the competent criminal court is only on the basis of a complaint in writing by a public servant concerned, etc. Hence it goes without saying that the cognizance of the offence as per Sec.188 of the IPC cannot be taken Crl.M.C. No. 4555 of 2017 ..8.. by the learned Magistrate on the basis of final report/charge sheet submitted by the Police under Sec.173 of the Cr.P.C. Hence, taking of cognizance in the instant case for the offence under Sec.188 of the IPC is illegal and ultra vires, and would go against the abovesaid statutory and mandatory bar engrafted in Sec.195(1)(a) (i) of the Cr.P.C. Hence it is ordered that the impugned criminal proceedings at Anx.A-1 final report/charge sheet (arising out of Crime No.1560/2009 of N.Paravur Police Station) which has led to the pendency of C.C.No.416/2010 on the file of the JFCM-I, North Paravur, to the limited extent it challenges the offence as per Sec.188 of the IPC will stand quashed and set aside. It is made clear that the trial in respect of other offences mentioned therein, viz Secs.341 & 323 of the IPC could go on as per law. However it is made clear that all the contentions of the petitioner may be raised at the time of trial. Further it is also made clear that, in case charges in this case have not so far been framed by the criminal court, then it will also be open to the petitioner to seek for discharge if the same is maintainable as per law. 9. The petitioner has got a case that the matter in C.C.No. 299/2010 on the file of the JFCM-I, N.Paravur, (arising out of Crl.M.C. No. 4555 of 2017 ..9.. Crime No.1560/2009 of N.Paravur Police Station) is a counter case in relation to the present case in C.C.No.416/2010. In case the trial in respect of C.C.No.299/2010 has not commenced and if these two cases would fulfil the basic parameters of case and counter case, then it will be open to the petitioner to seek for trial of these cases one after the other as envisaged in the legal principles laid down by the Apex Court in the decisions as in _**Nathi lal and Others v. State of U.P. And Another [1990 (Supp) SCC 145], Sudhir and Others v. State of M.P. [(2001) 2 SCC 688]**_ etc Those issues are left open. 10. The petitioner will produce certified copy of this judgment before the JFCM-I, N.Paravur, who is dealing with C.C.No.416/2010 as well as before the investigating officer concerned, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 4555 of 2017 ..10.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE CHARGE SHEET IN CC NO.416/2010 BEFORE THE JFCM-I, COURT, NORTH PARAVUR IN CRIME NO.1560/2009 OF NORTH PARAVUR POLICE STATION.**