Nisha Sebastian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943** ## **CRL.MC NO. 3260 OF 2021** **CRIME 326/2021 OF ALOOR POLICE STATION, THRISSUR** ## **PETITIONER:** **NISHA SEBASTIAN** **AGED 43 YEARS D/O.SEBASTIAN, NADUPPARAMBIL HOUSE, ST.THOMAS PRESS ROAD, PALA, PIN - 686 575.** **BY ADVS. T.M.MOHAMED YOUSUFF(SR.) P.A.AYUB KHAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 SABU SEBASTIAN AGED 44 YEARS PALAMATTATHU (H), CHOWKA DESOM, ELINJIPARA VILLAGE, KERALA, TRISSUR RURAL.** ## **BY ADV T.N.MANOJ** ## **OTHER PRESENT:** **SR.PP - SRI. NOUSHAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.09.2021, THE COURT ON 22.10.2021 PASSED THE FOLLOWING:** Crl.M.C.3260/21 2 ## **ORDER** This is a petition filed under Section 482 of the Criminal Procedure Code seeking to quash the FIR lodged against the petitioner in crime 326/2021 of Aloor police station. That crime was registered on 09.07.2021 alleging offence under Sections 120B, 465, 469 read with 34 IPC on the complaint of Sabu Sebastian, the 2[nd] respondent. That complaint was preferred before the Judicial First Class Magistrate, Chalakkudy by the 2[nd] respondent alleging offences under Sections 192, 195, 211, 465, 469, 120B read with 34 IPC. That complaint was forwarded to the police for investigation and on that basis the crime was registered and the petitioner is the 1[st] accused in the crime. 2. Before considering the contentions of the parties, it is appropriate to rush through Annexure A complaint preferred under Section 190(1)(a) of the Cr.P.C. on 8/7/2021. The 2[nd] respondent is the complainant; there are ten accused in the complaint; according to the 2[nd] respondent/complainant, he is a permanent resident of Chowka desom; he was a trustee of Emperor Immanuel Church, Zion, Muriyad from its inception in 2007 till 2017. He became the trustee after stopping his business in lodge in Mumbai. In 2017, Crl.M.C.3260/21 3 he along with the then chairman, secretary, etc. had to leave the trust out of the injustice meted out to them and the misconduct of other trustees. After they had left the trust, numerous other families also left the church; the accused persons are very much provoked by the acts of the complainant and other family members of the church. There are about 2000 such persons who have left the church. The first accused is the supremo and also spiritual head of the church. At her instance her henchmen have involved in numerous atrocious activities against women and other members of the church. This congregation was formed from other sects of different churches. Till 2017 it was running in a very smooth manner. After the death of the founder of the church, Mr.Joseph Ponnar on 24/5/2017, the first accused, her henchmen and others started troubling the complainant and others and that was how about 2000 persons had left the church. At that time somebody had made publications through social media that the 1[st] accused is an unwed mother, story of herself and her nine year old daughter had appeared in social media. Suspecting that the complainant was responsible for the same, she started such inimical acts against himself and others. Her henchmen, associates and goondas started troubling the persons who had quit the church. About 50 odd Crl.M.C.3260/21 4 cases are registered against such persons in Aloor police station; numerous fake cases have been registered against other persons also. While so, a fake rape case was foisted against C.C. Johnson at the instance of the 6[th] accused for which crime 143/2021 of Aloor police station was registered alleging offence under Sections 451, 376 and 506 IPC. Later on 28/6/2021 the 8[th] accused conducted a press conference alleging that police is not initiating action against the accused in the crime. The 8[th] accused alleged that the complainant and his men, at the instance of the said Johnson had published notices at their place of residences maligning them, which is factually incorrect. At the alleged date of distributing the notice the complainant was nowhere at the place of occurrence and was falsely implicated in the press conference. Such a press conference was the outcome of the criminal conspiracy hatched by the accused persons and they were framing a false case against Johnson. The complainant has at his disposal the audio and video conversations proving such criminal conspiracy and therefore he has approached the court for initiating criminal prosecution against the accused persons. According to him, everything was done at the instance of the 1[st] accused, that even the press conference was conducted by the 8[th] accused at Crl.M.C.3260/21 5 her instance and that was how the criminal prosecution was launched against the petitioner and others. 3. The petitioner submits that she is totally innocent of the allegations; She has no knowledge about the registration of a crime against the said Johnson and also not aware of the press conference conducted by the 8[th] accused. Everything is the outcome of the enmity nursed by the 2[nd] respondent against her. No specific overt act is alleged against her. There is absolutely no meaning in saying that she was part of a criminal conspiracy. She is totally unaware of such cases. She is not a trustee of Emperor Immanuel Church, Zion at Muriyad and Annexure C would indicate the same. The documents produced by the complainant also do not disclose any allegation against the petitioner capable of initiating criminal prosecution against her. Thus she wanted the criminal prosecution to be quashed. 4. On notice, the learned Senior Public Prosecutor represented the 1[st] respondent and the 2[nd] respondent filed an objection. He also produced Annexure R2(a) to (e) documents. According to him, the petitioner is the all in all of the congregation. She is the supremo of the Immanuel Church and the co- founder of the church along with the said Joseph Ponnar. After his Crl.M.C.3260/21 6 death she has become the spiritual head as well as the supremo of the institution. Feeling aggrieved by her misdeeds, thousands of people have left the congregation; out of that animosity she along with her henchman have started troubling the respondent and other persons and registration of crime against Johnson is one such instance. It was at her instigation that everything was done. The other accused persons are her close associates and close lieutenants. ‘Chechi’ described in the conversations that are produced along with the complaint is none other than the petitioner. Referring to Annexure R2(b) it was stated that she had proceeded to initiate such actions against one George on 19.03.2020 on the basis of some incident that had happened on 13.05.2017. The said George has already been granted anticipatory bail by this Court. She has criminal antecedents; there is a crime registered against her and another for having cheated one Philip Joseph after collecting Rs.10 lakhs from him. The respondent also referred to the transcriptions of the CDs produced in which her role is very clear and that the role of ‘chechi' described in the conversations can be revealed only on detailed investigation. 5. A reply affidavit was filed by the petitioner reiterating the contentions in the Crl.M.C. According to her, Annexure R2(b) FIR is under Crl.M.C.3260/21 7 investigation. Referring to Annexure F she contended that Annexure R2(d) crime has already been referred by the police as false. 6. I heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and also the learned counsel for the 2[nd] respondent. 7. The learned counsel for the petitioner argued that no specific allegations are made against her and she is not a trustee of the church but only a preacher and that she has been unnecessarily dragged into the proceedings, that she has no knowledge about the registration of the crime against the said Johnson; according to him, in the absence of overwhelming circumstances the court may not refuse to quash the proceedings. The learned counsel also placed reliance on the following decisions in support of his arguments: **State of Haryana and others v. Bhajanlal and others [1992 Supplementary (1) SCC 335], Jose Thettayil v. Station House Officer, Aluva East Police Station [2013 (3) KHC 336], Achuthanandan v. State of Kerala and others [2012 (4) KHC 874], Vesa Holdings Pvt. Ltd. and another v. State of Kerala and others [2015 KHC 4224], Devendra and others v. State of U.P. and another [2009 KHC 656], Prasanth v. Kuriakose [2020 (5) KLT 20], Lovely Salhotra v. State NCT of Delhi [2017 KHC 3564]** and **Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others (2021 SCC Online** Crl.M.C.3260/21 8 ## **SC 315).** 8. On the other hand, the learned counsel for the 2[nd] respondent argued that the investigation is at the preliminary stage only and the petitioner is the person behind all the misdeeds in the church; everything was done at her instance and without her knowledge, nothing will happen in that church. The disputed allegations have to be investigated by the police and the criminal conspiracy will be revealed only on examination of witnesses by the police. From the conversations of the co-accused the role of the petitioner is very clear. The counsel also relied on **[1998 (1) SCC 692]** (Sic.) 9. The learned Senior Public Prosecutor submitted that two CDs have been relied on by the complainant. Sound samples have to be taken and it has to be sent for examination by the cyber expert, genuineness of those CDs has to be verified; so far only three witnesses have been examined and the investigation is only at the preliminary stage. So he opposed the application for quashing the proceedings at this stage. 10. I have no doubt that, ordinarily an investigation into an allegation against a cognizable offence cannot be interfered with and quashed by the court at the threshold unless overwhelming reasons are stated by the petitioner by invoking the jurisdiction of this Court under Section 482 of the Cr.P.C. A proceeding Crl.M.C.3260/21 9 shall be quashed by this Court only sparingly, that is in rarest of rare cases. Allegations even if taken on face value, if do not make out a case against the petitioner, then only the question of quashing the proceedings arise. Various authorities relied on by the learned counsel indicate that only if there are overwhelming reasons, the court would quash the proceedings. In umpteen number of cases the Hon'ble Supreme Court has held that there must be prima facie reasons to say that the grounds urged in support of the petition are valid, then only a criminal proceedings will be quashed. Now let me consider the case of the parties in this backdrop. 11. The averments in the complaint as well as the objection raised by the 2[nd] respondent go hand in hand. On the other hand, the statement of facts in support of the petition and the reply affidavit go together. It is very clear from the averments and the documents produced by the parties that the petitioner plays an important role in Emperor Immanuel Church, Muriyad. It was founded by one Joseph Ponnar who died in 2017. The church was formed in 2007 and till 2017 it was running smoothly and after the death of Joseph Ponnar, some fissures developed between two prominent groups and some of the trustees left the trust and in their place new persons have come at Crl.M.C.3260/21 10 the helm of affairs. evidently there is rivalry between these persons. It appears that the petitioner has an important role in the congregation; she is working as a preacher. At the same time it must be stated that the contention that she is the trustee of the church appears incorrect. 12. There are reasons to think that she is a single parent. From Annexure R2(b) first information statement it appears that she is an unwed mother, of a nine year old girl. After the death of Joseph Ponnar, some of the persons in the rival group started maligning the petitioner stating that she is an unwed mother etc. and posts had appeared in social media maligning her and that led to widening the gap between the two factions; some of the trustees and their followers have left the church. Petitioner and others are continuing in the congregation in the old name and style. 13. It is very clear from the averments of the parties that there is tough opposition to the activities of the church by the rival groups who had left the trust. There is enmity prevailing between the two groups. Meanwhile a case as crime 143 of 2020 has been registered against one Johnson alleging that he had raped one of the members of the church and the prosecutrix had initiated prosecution proceedings against him. From the averments in the Crl.M.C.3260/21 11 complaint itself it is very clear that the 2[nd] respondent is very much irked by the said act of the prosecutrix. It is stated that everything was the handiwork of the petitioner and others and thereafter distribution of some notices etc. had taken place alleging that police is not taking action against the said Johnson. Then the 8[th] accused, an Olympian conducted a press conference against the inaction of the police for not initiating action against the said Johnson, these proceedings were initiated by the 2[nd] respondent alleging that his name has been falsely dragged in the preparation of the notice, that he is totally innocent etc. Whatever it may be, he has alleged that everything is the handiwork of the petitioner and others who had hatched a criminal conspiracy, in prosecution of their intention to malign and also to frame rival groups in false cases they have made attempts against them etc. 14. The initiation of this criminal proceedings is prompted by two instances, one is the registration of a crime alleging offence under Section 376 of IPC against the said Johnson who is an associate of the 2[nd] respondent and then conducting a press conference by the 8[th] accused. The 2[nd] respondent alleges that everything was done after hatching a criminal conspiracy among the accused persons and everything was done at the Crl.M.C.3260/21 12 instance of the 1[st] accused, the petitioner. 15. After going through the materials and also bearing in mind the principles laid down governing the subject, I am of the view that overwhelming reasons are not there to continue the proceedings against the petitioner as the 1[st] accused. As noticed earlier, the two factions are inimically disposed. The 2[nd] respondent has a clear case that everything was done at the instance of the petitioner. But It is a settled principle of law that a criminal prosecution cannot be launched against a person on the basis of surmises and conjunctures. There must be legal evidence to proceed against a person. Here the 2[nd] respondent as complainant was guided by mere suspicion. He does not have a specific case that the petitioner had done anything. Of course it is repeatedly stated that everything was done after hatching criminal conspiracy etc. But no specific role has been attributed against her. Apart from the sweeping, generalised statements that she is the person behind everything, that other persons are dancing to her tunes etc. no specific allegation is attributed against the petitioner. No overt act is also alleged against her. Criminal conspiracy cannot be attributed against her on mere suspicion. 16. Moreover it is not known as to how the 2[nd] respondent had come in Crl.M.C.3260/21 13 possession of some visuals or some conversations allegedly taken place among the accused persons. Even if it is assumed that they are genuine and that 'Chechi' mentioned in the conversation is the petitioner, would that sufficient to implicate her in a serious criminal case? My answer is in the negative. Merely on the statement of a co-accused the petitioner cannot be proceeded against. 17. This seems to be the outcome of rivalry between two groups who are actively indulged in mudslinging each other. They are using every opportunity to malign each other. There are only general statements against the petitioner which are vague, unspecific and lacking in particulars. Motive alleged against the 2[nd] respondent also cannot be ruled out. On the basis of such superfluous allegations petitioner cannot be proceeded against. Therefore, in my assessment overwhelming reasons are not available to proceed against the petitioner and the proceedings in crime 326/2021 of Aloor police station initiated against her are liable to be quashed. The Crl.M.C. is allowed as above. Sd/- **K. HARIPAL JUDGE** okb/16.10. **//True copy// P.S. to Judge** Crl.M.C.3260/21 14 ## **APPENDIX OF CRL.MC 3260/2021** ## **PETITIONER ANNEXURE** **Annexure A TRUE COPY OF THE FIR IN CR.326/2021 OF ALOOR P.S. Annexure B COPY OF THE DEED OF TRUST DATED 02/07/2009 OF EMPEROOR EMMANUEL CHURCH, MURIYAD. Annexure C COPY OF THE DEED OF TRUST DATED 04/11/2017 OF EMPEROOR EMMANUEL CHURCH, MURIYAD. Annexure D TRUE COPY OF THE TELEPHONIC CONVERSATION DOCUMENT. Annexure E TRUE COPY OF THE PRINTED DOCUMENT TRANSFERRED FROM VIDEO CLIPS. Annexure F PHOTO COPY OF THE REFER REPORT DATED 25/02/2020 IN CRIME NO.691/2018 OF ALOOR POLICE STATION.** **RESPONDENT ANNEXURE TRUE COPY OF VOTERS LIST DTD.5.8.2021 DOWNLOAD FROM ANNEXURE R2(A) THE SITE OF THE KERALA STATE ELECTION COMMISSION TOGETHER WITH THE VOTERS ID OF THE PETITIONER ANNEXURE R2(B) TRUE COPY OF THE FIR DTD.19.302020 AND THE FI STATEMENT IN CRIME 161 OF 2020 OF ALOOR POLICE REGISTERED AT THE INSTANCE OF THE PETITIONER AGAINST ONE GEORGE MATHEW ANNEXURE R2(C) TRUE COPY OF THE ORDER DTD.1.7.2020 IN BA 3680/2020 OF THIS COURT IN CRIME NO 161/2020 OF ALOOR POLICE TRUE COPY OF FIR DT.6.12.2018 IN CRIME 691/2018 OF ANNEXURE R2(D) ALOOR POLICE STATION WHICH IS FILED BEFORE THE JFCM COURT, CHALAKKUDY ANNEXURE R2(E) THE CONVERSATION OF THE ACCUSED WRITTEN DOWN AND EXTRACTED FROM THE CD PRODUCED AND HANDED OVER TO THE POLICE BY THE DEFACTO COMPLAINANT**