Muhammedshafi v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 CRL.MC NO. 4353 OF 2019`** ## **`AGAINST THE ORDER IN CC NO.1264/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I MUVATTUPUZHA`** ## **`PETITIONER/ACCUSED :-`** ``` MUHAMMEDSHAFI,AGED32YEARS S/O.USMAN,KOOTAPULAKKALHOUSE,PARIYAPURAM, THOOTHAP.O.,PERINTHALMANNA,MALAPPURAM, KERALA-679357. ``` ``` BYADVS. K.ANAND SRI.HUSSAINKOYAVALIYAVEEDAKATH SRI.T.M.MUHAMEDHAFEES ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT :-`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,ERNAKULAM682031. ``` ``` 2SABAINSIVADASAN, D/O.SIVADASAN,SABIDSHAHOUSE,PEZHAKAPPILLYKARA, - MULAVOOR,MUVATTUPUZHA,ERNAKULAM686673. ``` - **`BY ADV SRI.K.SUNILKUMAR SRI.VIPIN NARAYAN, SR.PP`** ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 25.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C.No.4353 of 2019 2 ## **ORDER** The petitioner herein is the accused in C.C.No.1264 of 2018 on the file of the Judicial First Class Magistrate Court-I, Muvattupuzha. In the aforesaid case, he is facing prosecution for having committed offence punishable under Sections 448 and 506 of the IPC. The petitioner has approached this court seeking to quash the proceedings on the ground that the continuance of criminal proceedings against him is a clear abuse of process. 2. Short facts are as under: The informant is the Managing Director of Sabine Hospital, situated at Pezhakkappally. According to him, the petitioner is a salesman dealing with medical equipment, and he purchased a Blood Gas Analysor from the petitioner about 8 years back on 19.5.2018. Some time prior to the registration of the crime, the petitioner approached the informant and persuaded him to purchase a Blood Gas Analysor manufactured by Seimens. The petitioner refused to oblige his request. Due to the above enmity, the petitioner is alleged to have trespassed into the hospital on 19.5.2018 at midnight and he is alleged to have taken some photographs of the informant taking a nap. It is alleged that the photographs were then shown to the hospital employees as well as the petitioner and the petitioner is alleged to Crl.M.C.No.4353 of 2019 3 have threatened that if equipment was not purchased from him, he would circulate the photographs through social media. It is on these allegations that information was lodged on 30.6.2018 and a crime was got registered. 3. The learned counsel appearing for the petitioner submitted that the crime was initially registered under Section 506 of the IPC, which is non-cognizable in nature. Referring to Section 155 of the Cr.P.C., it is submitted that the officer was required to seek prior orders from the learned Magistrate before commencing the investigation. It is further submitted that the crime was registered after 40 days of the alleged incident. It is further submitted that under further no circumstances, an offence under Section 506 of the IPC would be attracted. In order to justify the registration of the crime and to get over the bar under the Code, Section 448 of the IPC, which offense is cognizable, was included at the time of submission of the final report. Reliance is placed by the learned counsel on teh law laid down in Haneefa v State of Kerala 2023 KHC Online 973 and it is contended that teh commencement of investigation in respect of a non cognizable offense has rendered the investigation faulty. 4. In response, the learned public prosecutor submitted that at the time of registration of the FIR, Section 448 of the IPC was also incorporated. 5. I have considered the submissions advanced. I find that the FIR Crl.M.C.No.4353 of 2019 4 was registered on 30/06/2018 in respect of an incident that took place on 19/5/2018. In the computer-generated copy of the FIR, the offense incorporated is Section 506 of the I.P.C. Quite mischievously, Section 448 of the I.P.C. has been written in ink. This Court in **Haneefa** (Supra), after referring to the case law on the point, has held that commencement of investigation without an order from the Magistrate in respect of a non-cognizable offense is illegal. It was also held that incorporation of the cognizable offense at the time of filing of the final report cannot be utilized as a method or as a device to circumvent the mandate of Section 155 (2) of the Code by the officer in charge of the Police station or an investigating officer. In the instant case, I am satisfied that the offense under Section 448 of the I.P.C was incorporated at the time of filing the final report only to overcome the interdiction in Section 155 (2) of the code. As held by this Court, the commencement of investigation without an order of Magistrate, that too for the offense which is non-cognizable, will render the investigation faulty. Furthermore, there is a long delay in setting the law in motion. I am satisfied that in the facts and circumstances, the ingredients of the offence under Section 506 of the I.P.C is also not made out as no materials have been collected to substantiate the said allegation. 6. The scope of exercise of power under Section 482 of the Code Crl.M.C.No.4353 of 2019 5 and the categories of cases where the High Court may exercise its power under it relating to cognizable offenses to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **102.** In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. - (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. - (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 1 [1992 Supp (1) SCC 335 Crl.M.C.No.4353 of 2019 6 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. - (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. - (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. - (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. - (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. - (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. Crl.M.C.No.4353 of 2019 7 7. The Apex Court in **State of Karnataka v. L. Muniswamy & Others** (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that the ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts. 8. In **Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others** (1988) 1 SCC 692 it was observed in para 7 as under: "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, Crl.M.C.No.4353 of 2019 8 no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 9. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court, I am of the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under section 482 of the Code to quash the criminal proceedings against the petitioner. This petition will stand allowed. All further proceedings against the petitioner in CC No 1264 of 2018 on the file of the Judicial Magistrate of First Class- I, Muvattupuzha, will stand quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** SMA Crl.M.C.No.4353 of 2019 9 ## **`APPENDIX OF CRL.MC 4353/2019`** ## **`PETITIONER ANNEXURES :-`** ``` ANNEXUREA1TRUECOPYOFTHEFIRNO.2244/2018OF MUVATTUPUZHAPOLICESTATION,ERNAKULAM. ``` ``` ANNEXUREA2TRUECOPYOFTHEFINALREPORT. ```