Naushad K.Y. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **Crl.MC.No.8354 OF 2019(D)** **CC 825/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** **CRIME NO.538/2019 OF Aroor Police Station , Alappuzha** ## **PETITIONER** **NAUSHAD K.Y. AGED 52 YEARS S/O YUSUF, KOCHU MUHAMMADMANZIL (H), THURAVOOR P.O, ALAPPUZHA DISTRICT - 688532** **BY ADV. SMT.T.B.MINI** ## **RESPONDENTS** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED THROUGH BY PUBLIC PROSECUTOR , HIGH**| ||**COURT OF KERALA, ERNAKULAM, KOCHI- 31.**| |**2**|**K VIRENDRAKUMAR**| ||**SUB INSPECTOR OF POLICE, AROOR POLICE STATION,**| ||**ALAPPUZHA - 688534.**| |**3**|**CIRCLE INSPECTOR OF POLICE**| ||**AROOR POLICE STATION, AROOR, ALAPPUZHA - 688 534.**| |**4**|**PAREEDUKUNJU**| ||**AGED 76 YEARS**| ||**S/O KUTTIMOOSA, MOOSAMANZIL**| ||**EZHUPPUNNAPANJAYATH**| ||**ERAMALLOOR P.O, ALAPPUZHA - 688 537.**| |**5**|**SUPERINTENDENT OF POLICE**| ||**OFFICE OF SP AT ALAPPUZHA - 688 534.**| ||**R4 BY ADV. SRI.C.ANILKUMAR (KALLESSERIL)**| ||**R4 BY ADV. SRI.P.M.MANASH**| ||**R4 BY ADV. SRI.C.Y.VINOD KUMAR**| ||**PP SRI.D.CHANDRASENAN (Sr.)**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2008-2020, THE COURT ON 24-08-2020 PASSED THE FOLLOWING:** Crl.M.C.No.8354 of 2019 2 ## **M.R.ANITHA, J.** **--------------------------------Crl.M.C.No.8354 of 2019 --------------------------------Dated this the 24[th] day of August, 2020** ## **O R D E R** This Crl.M.C. has been filed by the accused in C.C.No.825/2019 on the file of the Judicial First Class Magistrate Court-II, Cherthala. The case against the accused has been charge sheeted by the Sub Inspector of Police Aroor, in crime No.538/19 of Aroor Police station. 2. Prosecution case is that on 12.5.2019 while the accused was driving KL-32-L-9944 autorickshaw from north to south through N.H and reached near Pallimukku bus stop, his vehicle hit against CW1 who was crossing the road from west to east, causing him to throw on the road resulting in fracture of the left ankle bone and thereby accused committed the offences punishable under Sections 279 and 338 of IPC. 3. According to the learned counsel, he was an autorickshaw driver who saved the life of 4[th] respondent/defacto complainant who was lying on the road after an accident while the petitioner was passing through the road back to his home Crl.M.C.No.8354 of 2019 3 from Thoppumpady to Aroor. According to her, as a good Samaritan he took the victim - 4[th] respondent to the house of his nephew situated 200 mtrs away from the place of incident. Subsequently, he has been falsely implicated as an accused in the above crime. Hence he filed a complaint before the 5[th] respondent. An enquiry was ordered and Dy.S.P., Cherthala conducted an enquiry and filed false report. Hence this case has been filed to quash the FIR in crime No.538/2019 of Aroor police station and the proceedings in C.C.No.825/2019 on the file of the Judicial First Class Magistrate Court-II, Cherthala. 4. Respondents No.1, 3 and 5 appeared through learned Public Prosecutor and the 4[th] respondent/defacto complainant appeared through Adv. C.Y. Vinod Kumar. 5. Heard both sides. 6. According to the learned counsel for the petitioner, immediately after the accident Assistant Motor Vehicle Inspector filed Annexure A2 report in which the name and address of the driver is shown as one Jaison K. and the petitioner's name is shown as the owner of the vehicle KL-32-L-9944. She would also contend that the copy of the FIS which is produced as Annexure Crl.M.C.No.8354 of 2019 4 A1 would show that the statement given by 4[th] respondent is that from the place of incident he was taken by a car to Lakeshore hospital and that is against the prosecution case. Annexure A3 is the copy of the complaint filed by the petitioner before the District Police Chief, Alappuzha about the false implication of him as the accused in crime No.538/2019. In that he has stated that his vehicle is not involved in the accident and he had only taken the victim to his nephew's house. Annexure 3(4) is the copy of an endorsement no.31709/2019 by which urgent personal enquiry was ordered in view of the complaint filed by the petitioner. Annexure A4 is the copy of report of the enquiry officer - Assistant Police Superintendent, Cherthala to the District Police Chief, Alappuzha which would show that an enquiry was conducted in pursuance of the complaint filed by the petitioner/accused and report has been filed stating that the complaint is baseless and he was actually driving the vehicle at the time of accident. Ext.A4(3) is the letter intimating the petitioner about the report of the enquiry officer. 7. The learned counsel for the petitioner would contend that the report filed by the Assistant Police Superintendent is with respect to another crime No.513/2019 which is registered Crl.M.C.No.8354 of 2019 5 under Sections 279, 304(A) & 283 IPC and all those factors according to her would show that this is a false case charged against the accused who has only taken a victim of an accident to his relative's house. 8. The learned Public Prosecutor on the other hand would contend that the complaint filed by the petitioner to the Police Chief was enquired by a higher officer and report also filed stating that the complaint is baseless. He would also contend that crime No.513/2019 was mistakenly stated in the report. Actually the vehicle of the petitioner himself was dashed against the victim and initially in the report of the AMVI, the name of the driver was mistakenly shown and subsequently it was corrected. 9. It is true that, in the FIS, the defacto complainant has stated that he had been taken from the place of incident to the Lakeshore hospital by the people assembled there in a car. But it is to be noted that even at the time of giving FIS the allegation was that an autorickshaw was dashed against him while has was crossing the road. With regard to the discrepancy of the statement that he was taken in a car directly from the place of accident to the Lakeshore hospital, the learned counsel for the Crl.M.C.No.8354 of 2019 6 4[th] respondent would contend that he is a very old man of about 76 years. The learned counsel for the petitioner would contend that the petitioner was only a good Samaritan and ultimately a criminal case has been charged against him and his driving licence has also been suspended for six months. Hence it is absolutely necessary to quash the proceedings which is pending against him before the Judicial First Class Magistrate Court-II, Cherthala. 10. But apart from the submission of the learned counsel there is no material to substantiate prima facie the allegations of the petitioner that he had only taken the victim to the house of his nephew. On the other hand the AMVI report which is marked as Annexure A2 which has been prepared after the incident on 16.05.2019 itself would state the vehicle involved as KL-32-L9944 and owner of the vehicle is also shown as petitioner himself. Though the driver's name was shown as Jaison that has been corrected as that of the accused later. Subsequently, final report also filed arraigning the petitioner as the accused. It is also informed at the time of argument that summons has already been issued to the accused and he entered appearance. So at this stage this Court cannot come to a conclusion that the vehicle Crl.M.C.No.8354 of 2019 7 of the accused was not involved in the accident and the accused was not driving the autorickshaw at the time of accident. All those factors could be ascertained only after taking evidence in the case. The copy of FIR, the statement of the 4[th ] respondent - defacto complainant (FIS) and the copy of the Final Report produced from the side of the petitioner prima facie support prosecution case. The inherent power vested under this Court under Section 482 Cr.P.C. can be exercised to prevent an abuse of process of court or otherwise to secure the ends of justice. It is relevant in this context to quote **R.P. Kapur v. State of Punjab [AIR 1960 SC 866]** wherein while dealing with the inherent power of the High Court it has been held that inherent power of High Court cannot be exercised in regard to matters specifically covered by the other provisions of the Code. It is also held that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is also held that the ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an Crl.M.C.No.8354 of 2019 8 interlocutory stage. 11. In **CBI v. Ravi Shankar Srivastava [AIR 2006 SC 2872]** , it has been held that the inherent jurisdiction is to be exercised carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. In **State of West Bengal v. Swapan Kumar Guha [AIR 1982 SC 949]** and also in **Rupam Deol Bajaj v. Kanwar Pal Singh Gill [AIR 1996 SC 309]** it has been held that the power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. It has been held in **State of Karnataka v. L. Muniswamy [AIR 1977 SC 1489]** that High Court is entitled to quash a proceeding if 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 it. In **Gorige Pentaiah v. State of A.P [(2008) 12 SCC 531]** it has been held while Crl.M.C.No.8354 of 2019 9 dealing with Section 482 that if any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 12. In this case, the learned counsel for the petitioner/accused was not able to prove any such contingency in proceeding against the accused/petitioner since a final report has already been filed against the petitioner as accused in crime No.538/2019. The statement of the eyewitnesses are enclosed with the final report stating about the incident and they have stated categorically that it is in the same autorickshaw which was dashed against the victim that he had been taken and they have also stated the number of the petitioner's autorickshaw. So there are prima facie materials in support of the charge. So also the complaint filed by the petitioner to the Police Chief was enquired by an higher officer and he has also filed report regarding the involvement of the petitioner's autorickshaw in the accident and the mistake committed in stating the name of the driver as Jaison instead of Noushad and that has been subsequently corrected also. Though crime number has shown mistakenly in the beginning of the report, towards the end the Crl.M.C.No.8354 of 2019 10 correct crime No.538/2019 has been shown also. That being the facts and circumstances, at this stage, I do not find any justifiable reason to quash the FIR No.538/2010 of Aroor Police Station and the proceedings in C.C.No.825/2019 pending before the Judicial First Class Magistrate Court-II, Cherthala. In the result, Crl.M.C. dismissed. Sd/- **M.R.ANITHA** Shg **JUDGE**