Nikhil Jacob, Aneesh Mathai, Punnoose K. George, Subi C. Chackochan v. Dana Paul, State of Kerala, Circle Inspector of Police, Puthencruz

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **FRIDAY, THE 13TH DAY OF JULY 2018 / 22ND ASHADHA, 1940** **Crl.MC.No. 1606 of 2018** **(AGAINST CC 696/2017 of J.F.C.M,KOLENCHERRY)** **CRIME NO. 136/2017 OF PUTHENCRUZ POLICE STATION, ERNAKULAM** ## **PETITIONER(S)** **1 NIKHIL JACOB, AGED 28 YEARS, S/O.JACOB, NELLIKKARATHEKKEDATH VEEDU, (ELAVATHIL), VADAVUKODE KARA, VADAVUKODE P.O., PIN-682310,** **2 ANEESH MATHAI, AGED 34 YEARS, S/O.MATHAI, PUTHUKUZHIYIL VEEDU, VADAVUKODE KARA, VADAVUKODE P.O., ERNAKULAM DISTRICT,PIN-682310.** **3 PUNNOOSE K.GEORGE, AGED 51 YEARS, KARAPPILLIL VEEDU, PANKODE KARA, PANKODE P.O., PIN-682310.** **4 SUBI C.CHACKOCHAN, AGED 38 YEARS, CHAKKEDATH VEEDU, VADAVUKODE KARA, VADAVUKODE P.O., ERNAKULAM DISTRICT, PIN-682310.** **BY ADV.SRI.PHILJO VARUGHESE PHILIPS** ## **RESPONDENT(S):** **1. DANA PAUL, AGED 31 YEARS, S/O.PAUL, THEKKEDATH VEEDU, VADAVUKODE KARA, VADAVUKODE P.O., ERNAKULAM DISTRICT, PIN-682310.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682031.** ## **3. CIRCLE INSPECTOR OF POLICE,** **PUTHENCRUZ, ERNAKULAM DISTRICT, PIN-682305.** **BY SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK** **R1 BY ADV. SRI.D.G.VIPIN** **R1 BY ADV. SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY R1 BY ADV. SRI.P.P.KURIEN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1606 of 2018 ()** ## ## **PETITIONER(S)' EXHIBITS:** **ANNEXURE I TRUE COPY OF THE ORDER DATED 21-12-2016 PASSED IN THAT BEHALF BY THE FIRST ADDITIONAL DISTRICT JUDGE, ERNAKULAM. ANNEXURE II CERTIFIED COPY OF THE COMPLAINT C.C.NO.125/2017 FILED BY THE 1ST RESPONDENT BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERY. ANNEXURE III TRUE COPY OF THE F.I.R. REGISTERED AGAINST THE PETITIONERS NUMBERED AS CRIME NO.136/2017. ANNEXURE IV CERTIFIED COPY OF THE FINAL REPORT DATED 28-2-2017 FILED BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERY. ANNEXURE V CERTIFIED COPY OF THE COMPLAINT NUMBERED AS C.M.P.NO.696/2017 ON THE FILES OF THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERY. ANNEXURE VI TRUE COPY OF THE SUMMONS RECEIVED BY THE 1ST PETITIONER FROM THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERY.** ## **RESPONDENTS EXHIBITS:** ## **NIL** **/TRUE COPY/** **VPS PS TO JUDGE** ## **K.ABRAHAM MATHEW J.** ## **---------------------------------------------** ## **Crl.M.C. No. 1606 of 2018** ## **--------------------------------------------Dated this the 13[th] day of July, 2018** ## **ORDER** Petitioners are the accused in C.C. No.696 of 2017 on the file of the Judicial Magistrate of First Class, Kolencherry. On a complaint filed by the first respondent, the learned Magistrate took cognizance of the offences under Sections 323, 324, 341 and 506 IPC and issued process to the petitioners for their appearance. The proceedings are sought to be quashed on the ground that the case is false and it was instituted with malicious intention. 2. Heard the learned counsel for the petitioners and the first respondent and the learned Public Prosecutor. 3. The alleged incident happened on 1.1.2017 at about 8.40 in the morning in the premises of St.Mary's Orthodox Syrian Church, Vadavukode. On 12.1.2017 the first respondent allegedly informed Crl.M.C. 1606 /18 **-:2:-** the police in writing about the incident. But no action was taken. Thereupon he filed a complaint before the learned Magistrate on 21.1.2017 which was forwarded to the police under Section 156(3) Cr.P.C. After investigation the police referred it as false. Thereupon the first respondent filed a protest complaint before the learned Magistrate, who after enquiry issued process to the petitioners. 4. In St.Mary's Orthodox Syrian Church, Vadavukode there are two factions. Petitioners belong to the Orthodox faction and the first respondent the Jacobite faction. The former faction is allowed to conduct ceremonies and prayers between 6.00 to 8.45 in the morning and the latter faction between 9.00 to 12.00 noon. The District Judge concerned allowed solemnization of the marriage of the first petitioner in the Church between 12.00 noon and 1.30 p.m. on 1.1.2017. The first petitioner and others attended the mass celebrated between 6.00 and 8.45 in the morning on 1.1.2017. It is thereafter the alleged incident happened. 5. The allegation in the complaint is that at the relevant time when the first respondent reached the Church to attend the mass, the petitioners wrongfully restrained him and assaulted him with hands and an iron rod. 6. On the very same day Crime No.6 of 2017 was registered Crl.M.C. 1606 /18 **-:3:-** by the police. The allegation is that when the first petitioner and others were leaving the Church after attending the mass at about 8.40 in the morning, the first respondent and others blocked their way, abused them and attempted to rob them off the money offered at the Church during the mass and the first respondent assaulted the first petitioner with an iron rod causing him injuries. The first respondent was released on bail on 11.1.2017. On 12.1.2017 he allegedly filed a complaint before the police. The police did not take any action. It was thereupon the first respondent filed a complaint before the learned Magistrate, who referred it to the police. The police reported that the allegation in the complaint was false. 7. Even going by the allegation in the complaint there was a delay of 12 days in informing the police. The explanation given in paragraph 4 of the complaint filed before the learned Magistrate is that the first respondent was not well because of the injuries sustained by him and he thought that the police would register a case. This should be appreciated in the light of the following facts. 8. On the date of occurrence itself the petitioner went to Government Community Health Centre at Vadavukode. Annexure-V is a copy of the out patient ticket. The Doctor noticed the following injuries. 'Mild redness and oedema on the left forefinger, redness on Crl.M.C. 1606 /18 ## **-:4:-** the left side of the abdomen and tenderness on the left side of the forehead. He was advised to take X-ray of the left forefinger if oedema progressed. But he did not take X-ray thereafter. He must have spent only a few minutes at the Health Centre. Immediately thereafter he went back. It cannot be believed that he thought that the police would register a case. He knew well that nobody informed the police about the alleged incident. The specific allegation in the compliant is that the first petitioner hit the first respondent with an iron rod and the latter sustained injuries on the left palm and the left side of the forehead. The Doctor did not notice any injury on the left palm. The only injury noticed on the forehead was tenderness. It is unbelievable that an attack with an iron rod did not cause any injury on the left palm and caused only tenderness on the forehead where the bone is just under the skin. So the medical evidence indicates that the first respondent's allegation of assault with an iron rod is not true. 9. The police referred the case registered on the basis of the complaint forwarded to it by the learned Magistrate. In **Parameswaran Nair v. Surendran** (2009 (1) KLT 794) this Court has held that when a protest complaint is filed the learned Magistrate is bound to consider the materials collected by the police during the Crl.M.C. 1606 /18 ## **-:5:-** investigation. That was not done by the learned Magistrate. 10. There is no dispute that at the relevant time the first petitioner sustained injuries and he was admitted to a hospital. The incident happened just before 9.00 in the morning. The marriage of the first petitioner was to be solemnized three hours later. It is unbelievable that he would get himself involved in a criminal case. This also improbabilizes the first respondent’s case that the first petitioner assaulted him with iron rod. 11. The facts discussed above fully justify the argument of the learned counsel for the petitioners that the compliant was filed with the intention of setting up a defence in the case registered against the first respondent and others. The complaint was instituted with malicious intention. It is liable to be quashed. In the result, this Crl.M.C. is allowed. The proceedings in C.C. No.696 of 2017 on the file of the Judicial Magistrate of First Class, Kolencherry, are quashed. **Sd/-** ## **K.ABRAHAM MATHEW JUDGE** vps 13/7 /True Copy/ PS to Judge