Narendra Nath D. S/o C.P. Damodaran Nair v. State of Kerala and Sreenath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 13TH DAY OF JANUARY 2014/23RD POUSHA, 1935** ## **Crl.MC.No. 642 of 2012** **--------------------------------** **AGAINST THE ORDER IN CC 279/2011 of THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR CRIME NO. 346/2010 OF TOWN WEST POLICE STATION , TRISSUR** **--------------** ## **PETITIONER/2ND ACCUSED:** **----------------------------------------** **NARENDRA NATH D. S/O. C.P. DAMODARAN NAIR, 'GAUTHAM' CLUB ROAD, SOUTH GIRINAGAR, KADAVANTHARA, KOCHI-682 020.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** **(SUB INSPECTOR OF POLICE THRISSUR WEST POLICE STATION, THRISSUR), RPERESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **2. SREENATH,** **S/O JANARDHANAN, SREE THUSHARAM, ARUVANNOORPARAMBU DESOM, KOLLAMKODE, PALAKKAD DISTRICT, PIN-678 506.** **R1 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 642 of 2012** ## **--------------------------------** ## **APPENDIX** **PETITIONER(S) ANNEXURES -----------------------------------------** **ANNEXURE I: TRUE COPY OF THE COMPLAINT DATED 08.07.2009 FILED BY BEENA RANI, WIFE OF JOJU BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.** **ANNEXURE II: TRUE COPY OF THE ORDER DATED 10.07.2009 IN W.P.(C) NO.19468/2009 OF THIS HON'BLE COURT.** **ANNEXURE III: TRUE COPY OF THE COMPLAINT DATED 22.01.2010 FILED BY BEENA RANI, WIFE OF JOJU BEFORE THE SUPERINTENDENT OF POLICE, THRISSUR.** **ANNEXURE IV: TRUE COPY OF THE F.I.R. AND F.I. STATEMENT IN CRIME NO.346/2010 DATED 17.04.2010 OF THRISSUR WEST POLICE STATION.** **ANNEXURE V: TRUE COPY OF THE ORDER DATED 06.01.2011 IN CRL.M.A. NO.7086/2010 IN CRL.M.C. NO.4437/2010 OF THIS HON'BLE COURT.** **ANNEXURE VI: CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.346/2010 DATED 20.11.2010 OF THRISSUR WEST POLICE STATION** **ANNEXURE VIII: TRUE COPY OF THE STATEMENT DATED 14.06.2010 OF THE 2ND RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, WEST POLICE STATION, THRISSUR.** **ANNEXURE VIII: TRUE COPY OF THE STATEMENT DATED 30.04.2010 OF THE 2ND RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, THRISSUR WEST POLICE STATION. ANNEXURE IX: TRUE COPY OF THE ORDER DATED 29.06.2010 IN CRL.M.C.NO.1134/2010 OF THE SESSIONS COURT, THRISSUR.** **ANNEXURE X: TRUE COPY OF THE ORDER DATED 06.08.2010 IN BAIL APPL. NO.4295/2010 OF THIS HON'BLE COURT.** **RESPONDENTS' ANNEXURE ----------------------------------------** **NIL** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.642 of 2012** **-------------------------------------Dated this the 13[th] day of January, 2014.** ## **ORDER** Petition filed under Section 482 of the Criminal Procedure Code (Cr.P.C.). 2. Petitioner is the 2[nd] accused in Crime No.346 of 2010 of Thrissur West Police Station registered under Sections 363, 330, 342, 323, 452 and 506(ii) read with Section 34 of the Indian Penal Code (for short, “IPC”). The matter is pending as C.C.No.279 of 2011 on the file of Chief Judicial Magistrate Court, Thrissur. Case of the petitioner, in nut-shell, is the following: Petitioner is a practicing advocate. He is having a standing of more than 20 years at the Bar. According to him, he is implicated in this case only because of the personal vendetta nurtured by the Sub Inspector of Police, Thrissur West Police Station who worked at the material time. 3. Prosecution case is to the effect that the Police received a complaint from the defacto complainant (2[nd] respondent) that on 16.04.2010, at about 5.30 p.m., 1[st] acused Joju and two others forcefully took him in a car and he was manhandled from within the car. It is also contended that he was taken to the office of the 1[st] accused, with whom 2 Crl.MC No.642/2012 the defacto complainant had business dealings. Defacto complainant was dealing with software commodities and the 1[st] accused was a builder. Defacto complainant designed a custom made software for the use of the 1[st] accused. 1[st] accused had a case that the software was not useful for his purpose and therefore, he demanded `75,000/- paid to the defacto complainant as cost of developing the software. Defacto complainant refused to return money and therefore, he was kidnapped on 16.04.2010. It is also alleged that he was forced to sign on blank white papers, stamp papers and cheques. On the basis of this allegation Annexure IV FIR was registered by the Police. Annexure VI is the final report filed on 02.12.2010. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. Petitioner has a case that the concerned Police Officer was enmical towards the 1[st] accused. His wife filed Annexure I complaint before the Director General of Police alleging that certain police officers named therein were haunting the 1[st] accused and his family. Annexure II is the interim order passed in W.P.(C) No.19468 of 2009 filed by wife of the 1[st] accused alleging police harassment. Thereafter, Annexure III complaint was filed before the District Police Officer by the wife of 1[st] accused. Therein also specific allegations of unnecessary interference by the police 3 Crl.MC No.642/2012 is mentioned. 6. In this backdrop, it was argued that certain police officers were bent upon harassing the petitioner and other accused. Petitioner being a lawyer has rendered legal advice to the 1[st] accused. According to the petitioner, that is why the police nurtured hostility to him. 7. Learned counsel for the petitioner submitted that the documents produced would show the highhandedness of the police authorities shown to falsely implicate the petitioner in this crime. Annexure VI final report was returned by the learned Chief Judicial Magistrate noting the following reasons: _“1. Report regarding the full address of the accused not seen produced._ _2. Seizure mahazer dt.12-05-10 (item No.4 in the document list) is not seen produced._ _3. Documents seized as per the seizure mahazer dt.17-4-10 is not seen produced._ _4. Date of despatch and signature of SHO are not entered.”_ The date shown by the learned Magistrate is 04.11.2010. It is a clerical mistake as is evident from the seal of the court that final report itself was filed only on 02.12.2010. Therefore, learned counsel would argue that this was returned on 04.12.2010. It is seen from the endorsement on Annexure VI final report that it was resubmitted by the Sub Inspector of Police on 4 Crl.MC No.642/2012 16.03.2011. Again it was returned on 02.04.2011 by the learned Magistrate for following reasons: _“1. The records prima facie make out offences u/s.392, 394 I.P.C. also._ _2. There is no material among the records to implead A2 and A3. Explain how they are impleaded as accused in the case.”_ It was clear that there was no material produced to reveal the identity of accused 2 and 3. Therefore, the learned Magistrate was of the view that there was no evidence to implicate accused 2 and 3 in this case. Annexure VI was resubmitted on 03.12.2011, ie., after about eight months. Now comes the relevancy of Annexures VII and VIII. Annexure VII is a statement of the defacto complainant recorded by the police on 14.06.2010. In that statement, the defacto complainant stated before the police that the driver of the car of the 1[st] accused and another person travelled with the 1[st] accused in the car could be identified by sight. Names of those persons were not furnished by the defacto complainant in Annexure VII. Learned counsel for the petitioner submitted that Annexure VIII statement is a concoction and cooked up one by the police to sustain a false prosecution. Annexure VIII is a statement of the defacto complainant said to have been recorded on 30.04.2010. That was produced for the first time before the court on 03.12.2011, i.e., at the time of second 5 Crl.MC No.642/2012 resubmission of Annexure VI final report. Prosecution has not shown any reason for not producing Annexure VIII either along with Annexure VI final report initially or at least at the time of first resubmission. As per Annexure VIII, the defacto complainant has named the petitioner as the person who travelled in the car along with 1[st] accused at the time when he was manhandled by the 1[st] accused. Case against the petitioner is that he intimidated the petitioner that he would be finished off if he disclosed this incident to anyone. According to the learned counsel for the petitioner, this statement is falsely created to rope in the petitioner in the crime. 8. Learned Public Prosecutor has stated that Annexure VIII statement would show that petitioner is very much involved in the crime. But, none of the prosecution documents show any tangible reason as to why Annexure VIII was not produced along with the final report at least on the first resubmission. 9. Learned counsel for the petitioner relied on Annexures IX and X to expose the falsity of Annexure VIII statement. Annexure IX is the order passed by the learned Sessions Judge, Thrissur in anticipatory bail application submitted by the 3[rd] accused in the crime while he was absconding, i.e., 29.06.2010. Of course, the learned Sessions Judge declined the reliefs claimed therein. Annexure X is the order passed by learned Single Judge of this Court in B.A.No.4295 of 2010 dated 6 Crl.MC No.642/2012 06.08.2010. As per that order, the 3[rd] accused was granted anticipatory bail with conditions. It is seen from Annexure VIII statement that on 30.04.2010 the defacto complainant saw the 3[rd] accused in the police station as he secured bail in the case and presented himself in the police station. This statement in Annexure VIII is totally incongruous with the facts revealed from Annexures IX and X. It is, therefore, contended that on this account also it can be seen that Annexure VII is a document falsely cooked up by the prosecution. Had Annexure VIII statement was there in the file, there was no occasion to mention in Annexure VII, recorded on 14.06.2010, that the identity of the petitioner was not revealed. It is argued that there is no reference of Annexure VIII in Annexure VII. All these aspects throw considerable suspicion in the veracity of the prosecution case, contended the learned counsel for the petitioner. 10. The legal position in respect of the powers of this Court under Section 482 Cr.P.C. is well settled. Learned counsel for the petitioner relied on **S.N.Sharma v. Bipen Kumar Tiwari and others ((1970) 1 SCC 653)** . Though the facts are not similar to this one, the point urged is the following: _“............. It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been_ 7 Crl.MC No.642/2012 _committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Art. 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code._ Reliance was placed on **State of Haryana and others v. Bhajan Lal and others (1992 SCC (Cri) 426)** . In paragraph 102, the Apex Court gave certain guidelines which reads as follows: _“ 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,_ 8 Crl.MC No.642/2012 _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 F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 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 F.I.R. 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._ 9 Crl.MC No.642/2012 _5. Where the allegations made in the F.I.R. 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 oncerned 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._ It is argued that guideline No.7 given by the Supreme Court is squarely applicable to this case. Relying on **Madhavrao Jiwajirao scindia and** ## **others v. Sambhajirao Chandrojirao Angre and others ((1988) 1 SCC** **692)** , it was contended that it is for the court to take into consideration any special features while invoking Section 482 Cr.P.C. which appear in a particular case to consider whether it is expedient and the interest of 10 Crl.MC No.642/2012 justice to permit a prosecution to continue. It was also observed that 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 ultimate conviction is bleak and, therefore, 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 this case also quash the proceeding even though it may be at preliminary stage. 11. To buttress the argument that jurisdiction under 482 Cr.P.C. is to be invoked in a case if the prosecution is initiated on concocted facts or the prosecution is for oblique purposes, reliance is placed on **Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others (AIR 1991 SC 2176)** . 12. Learned counsel for the petitioner submitted that the Supreme Court in a recent decision in **Rajiv Thapar and others v. Madan Lal Kapoor ((2013) 3 SCC 330)** , in paragraph 30, makes certain observations in relation to the power of the High Court under Section 482 Cr.P.C. Relevant portion reads as follows: _“30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:_ 11 Crl.MC No.642/2012 _30.1.Step one:whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?_ _30.2. Step two:whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?_ _30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?_ _30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?_ _30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising_ 12 Crl.MC No.642/2012 _therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”_ 13. It is indubitable that the power of this Court under Section 482 Cr.P.C. is to be invoked if it is established that the prosecution is launched and proceeded to wreck personal vendetta or with oblique motives. In this case, the petitioner has established that the prosecution against him is on account of the ill will nurtured by certain police officers in connection with the professional service rendered by him to a client. Therefore, I am of the view that if the prosecution is allowed to proceed with, the petitioner will be put to prejudice and will be called up to stand a trial without any reason. Therefore, the petition is to be allowed. In the result, the petition is allowed. Final report (Annexure VI) in Crime No.346 of 2010 of Thrissur West Police Station and all proceedings thereon in C.C.No.279 of 2011 on the file of the Chief Judicial Magistrate Court, Thrissur, in respect of this petitioner, will stand quashed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**