Mubashir @ Muchi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945** **CRL.MC NO. 6289 OF 2023** **SC 981/2022 OF FAST TRACK SPECIAL COURT, NADAPURAM** ## **PETITIONER/ACCUSED NO.2:** MUBASHIR @ MUCHI, AGED 22 YEARS, S/O. GAFOOR, NADUTHARA HOUSE, MULLAMBATHU P.O, MULLAMBATHU, NARIPATTA, KOZHIKODE DISTRICT, PIN - 673506 BY ADVS. SRUTHY K.K RAHUL SUNIL P.VIJAYA BHANU (SR.) P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT NIKITA J. MENDEZ ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 XXXXXXX BY ADV SRI.N.R.SANGEETHA RAJ, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.6289 of 2023 2 ## K.BABU, J . -------------------------------------- ## Crl.M.C No.6289 of 2023 --------------------------------------- Dated this the 25[th ] day of August, 2023 ## O R D E R The prayer in this Criminal M.C filed under Section 482 of Cr.P.C is as follows: “.......to allow this Criminal Miscellaneous Case, quash Annexure 2 final report and all further proceedings pursuant thereto in S.C No.981/2022 pending on the files of the Fast Track POCSO Court, Nadapuram, as against the Petitioner/Accused No.2, so as to secure the ends of justice.” 2. The petitioner is accused No.2 in S.C No.981/2022 on the file of the Fast Track Special Court, Nadapuram. The petitioner and the other accused face charges under Sections 342, 363, 370(4) and 377 of IPC and Section 4 read with Sections 3(a), 3(c) and 3(d), Section 12 read with Section 11(vi), Section 17 read with Section 16(2), Section 6(l) read with Sections 5(l) and 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the Act'). 3. Heard both sides. 4. The prosecution case is as follows: The victim in this case is a male child aged 15 years. The victim was taken into a car by Crl.M.C.No.6289 of 2023 3 accused No.1. The victim wanted to get down at Mulivayal. He requested Afsal (accused No.1) to let him get down at Mulivayal junction. When the vehicle reached the place where the victim wanted to get down Afsal told him that they could roam around and come back. On the way, they met one Sameer, who gave an Icecream to the victim. Afsal proceeded further, and when they reached Mulambath junction, the petitioner/accused No.2 got into the car. On the way, the petitioner provided food to the victim. The car reached in front of the Malabar Tourist Home, Koduvally. The victim and the petitioner remained in the car. Afsal got down and went to the Tourist Home. While they were sitting in the car, the petitioner got a call. Thereafter, the victim was taken by the petitioner to room No.210 on the second floor of the Tourist Home. The petitioner closed the room from the inside. Afsal was there. After that, as instructed by Afsal, the petitioner went out. Afsal closed the door from the inside. He committed penetrative sexual assault against the victim. 5. The specific allegation against the petitioner is that he wrongfully confined the victim and intentionally aided Afsal, the Crl.M.C.No.6289 of 2023 4 other accused, in the commission of the offences alleged against him. 6. The materials placed before this Court reveal that the petitioner wrongfully restrained the victim in such a manner as to prevent him from proceeding beyond certain circumscribing limit. There are also materials to show that he intentionally aided accused No.1 in the commission of the sexual offences. ## 7. Section 16 of the Act reads thus: “16. Abetment of an offence. – A person abets an offence, who- First.–Instigates any person to do that offence; or Secondly.–Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that offence. Explanation I.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence. Explanation II.- Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Explanation III.- Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.” Crl.M.C.No.6289 of 2023 5 8. As stated thirdly in Section 16 of the Act, a person abets an offence, who intentionally aids by any act or illegal omission, the doing of that offence. Explanation (II) to Section 16 of the Act says that whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. 9. In the present case, materials are sufficient to prima facie establish that the petitioner committed the offences under Section 342 of IPC and Section 16 read with Section 17 of the Act. 10. It is settled by a long course of decisions of the Apex Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations {Vide: State of West Bengal v. Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370] } . Crl.M.C.No.6289 of 2023 6 11. In State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651] , the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In State of U.P v. O.P.Sharma [(1996) 7 SCC 705] a Three Judge Bench of the Apex Court observed that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another Three Judge Bench of the Apex Court in Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397], wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final Crl.M.C.No.6289 of 2023 7 report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in Mahendra K.C. v. State of Karnataka and Ors. (AIR 2021 SC 5711). 12. While dealing with the power under Section 482 Cr.P.C to quash the criminal proceedings the Apex Court in M/s.Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and others (AIR 2021 SC 1918) concluded thus in paragraph 23 of the judgment: 23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India, our final conclusions are as under: (i) xxx xxx xxx Crl.M.C.No.6289 of 2023 8 (ii) xxx xxx xxx (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) xxx xxx xxx (xiv) xxx xxx xxx (xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR.” 13. In the present case, this Court finds nothing exceptional to invoke the jurisdiction under Section 482 Cr.P.C.. The petitioner failed to convince this Court that the allegations levelled against him in the prosecution records made available do not disclose the ingredients of the offences alleged. The correctness or otherwise Crl.M.C.No.6289 of 2023 9 of the allegations levelled in the FIS is a matter to be tested during the trial. It is made clear that this Court has not made any observation on the merits or otherwise of the allegations which formed the foundation of the charges. The Crl.M.C. lacks merits and it stands dismissed. Sd/K.BABU, JUDGE KAS Crl.M.C.No.6289 of 2023 10 ## **APPENDIX OF CRL.MC 6289/2023** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE F.I.R. NO. 267/2022 OF VALAYAM POLICE STATION, KOZHIKODE DISTRICT ALONG WITH THE FIS GIVEN BY THE MINOR VICTIM IN THE PRESENCE OF HIS FATHER, BEFORE POLICE IS PRODUCED HEREWITH AND MARKED AS ANNEXURE A1. Annexure A2 TRUE COPY OF THE FINAL REPORT IN CRIME NO.267/2022 OF VALAYAM POLICE STATION, KOZHIKODE DISTRICT. Annexure A3 TRUE COPY OF THE STATEMENT OF THE VICTIM RECORDED UNDER 164 CR.P.C IN THE INSTANT CASE.