P. Vimodh S/o Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 22ND DAY OF AUGUST 2016/31ST SRAVANA, 1938** **WP(C).No. 26075 of 2016 (H) ----------------------------** **PETITIONER(S): -------------** **P.M.VIMODH S/O. MOHANAN, AGED 34 YEARS, RESIDING AT POOVAN PARAMBIL HOUSE, P.O NETTISSERY, THRISSUR 680 651** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI. AUGUSTINE JOSEPH SRI. P. JAYASANKAR SRI. SHIBI SRI.K. JANARDHANAN SRI.M.T. SURESH KUMAR SRI.M.V. BOSE SRI.R.T. PRADEEP SRI.M.A.ABDUL HAKHIM SRI.T.K.AJITH KUMAR SRI.J.S.AJITHKUMAR SRI.E.S.ASHRAF SRI.AYPE JOSEPH SRI.C.ANILKUMAR (KALLESSERIL) SRI.ANOOP JOSEPH SRI.ANOOP.V.NAIR SRI.K.V.ANIL KUMAR SRI.ABHILASH AKBAR SRI.ABHILASH S.FRANCIS SRI.ANEESH JOSEPH SRI.A.ARUNKUMAR SRI.P.V.ANOOP SRI.BABU S. NAIR SRI.BIJU BALAKRISHNAN SRI.S.CHANDRASENAN SRI.DENIZEN KOMATH SRI.S.DILEEP SRI.M.DINESH SRI.DINESH THANKAPPAN SRI.FRINSO MATHEW SRI.K.B.GANGESH SRI.GEORGE VARGHESE (MANACHIRACKEL) SRI.P.GOPINATH** ## **WP(C).No. 26075 of 2016 (H)** **SRI.E.G.GORDEN SRI.P.I.GEORGEKUTTY SRI.GENS GEORGE ELAVINAMANNIL SRI.P.C.GEORGEKUTTY SRI.P.C.HARIDAS SRI.J.HARIKUMAR SRI.P.P.JACOB SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.JOSEPH SEBASTIAN PURAYIDAM SRI.JAIRAM.V.MENON SRI.C.R.JAYAKUMAR SRI.JAMSHEED HAFIZ SRI.JEEVAN MATHEW MANAYANI SRI.M.G.KARTHIKEYAN SRI.T.K.KUNHABDULLA SRI.LAL K.JOSEPH SRI.C.S.MANU SRI.A.MOHAMMED FAIZAL SRI.R.K.MURALEEDHARAN SRI.MANJU ANTONEY SRI.R.MAHESH (KOTTAPPURAM) SRI.N.MANU THAMPI SRI.P.K.NIJOY SRI.NIRMAL V NAIR SMT.NEETHU.K.SHAJI SRI.S.K.PREMRAJ SRI.K.PAUL KURIAKOSE SRI.PHILJO VARUGHESE PHILIPS SRI.PRATHAP PILLAI SRI.PHIJO PRADEESH PHILIP SRI.T.M.RAMAN KARTHA SRI.K.RAVIKUMAR SRI.RAJESH VIJAYAN SRI.RAJESH CHAKYAT SRI.K.RAJESH KANNAN SRI.R.B.RAJESH SRI.C.I.RIYAD SRI.SAIBY JOSE KIDANGOOR SMT.V.SARITHA SRI.A.SHAFEEK (KAYAMKULAM) SMT.SMITHA CHATHANARAMBATH SMT.T.N.SREEKALA SRI.R.SUDHEER SRI.T.M.SUNIL SRI.K.R.SUNIL SRI.R.SURENDRAN SRI.M.SREEKUMAR SRI.M.T.SURESHKUMAR SRI.SREEJITH V.S. SRI.SHANKAR V. SRI.SUJESH MENON V.B. SRI.P.K.SAJEEV SRI.SRINATH GIRISH SRI.S.K.SAJU SRI.T.B.SIVAPRASAD SRI.SAJU J PANICKER** **WP(C).No. 26075 of 2016 (H)** **MRS.S.SREELAKSHMY SRI.P.SAJU SRI.R.SYLESHWAREN NAIR SRI.TOJAN J. VATHIKULAM SRI.T.R.TARIN SRI.P.VIJAYA BHANU (SR.) SRI.VINOD MADHAVAN SRI.R.VINU RAJ SRI.C.Y.VIJAY KUMAR SRI.K.ZAKEER HUSSAIN** ## **RESPONDENT(S):** - **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE HOME SECRETARY GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001** **2. SUB INSPECTOR OF POLICE** - **TOWN POLICE STATION KOZHIKODE (NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM)** ## **3. S. BINURAJ** - **FATHER'S NAME AND AGE NOT KNOWN BUREAU CHIEF, ASIANET NEWS, BABY ARCADE, MAYOR BHAVAN, P.T USHA ROAD, KOPZHIKODE 673 032** **4. THE DISTRICT GOVERNMENT PLEADER/PUBLIC PROSECUTOR COURT COMPLEX, KOZHIKODE 673 032** **5. THE CALICUT BAR ASSOCIATION** - **BAR ASSOCIATION BUILDING, COURT COMPLEX, KOZHIKODE 673 032 REPRESENTED BY ITS SECRETARY** **R1 R2& R4 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY R3 BY ADVS. SMT.LIZAMMA AUGUSTINE** **SRI.SEBASTIAN PAUL R5 BY ADVS. SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SRI.K.PADMARAJ SRI.SHYAM PADMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 26075 of 2016 (H) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1: TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO 669 OF 2016 OF THE TOWN POLICE STATION, KOZHIKODE EXHIBIT P2: TRUE PHOTOSTAT COPY OF THE RESOLUTION DT 3007-2016 PASSED IN THE EXTRAORDINARY GENERAL BODY MEETING OF THE 6TH RESPONDENT EXHIBIT P3: TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO 666 OF 2016 OF THE TOWN POLICE STATION, KOZHIKODE EXHIBIT P4: TRUE PHOTOSTAT COPY OF THE RELEVANT GD ENTRIES ON 30-07-2016 OF THE TOWN POLICE STATION, KOZHIKODE RESPONDENT(S)' EXHIBITS : NIL. //TRUE COPY// P.S. TO JUDGE** ## **bp** ## **B. KEMAL PASHA, J.** ................................................................ W.P.(C) No. 26075 of 2016 ............................................................... Dated this the 22[nd] day of August, 2016 ## **J U D G M E N T** Based on Ext.P1(6) complaint allegedly preferred by S. Binuraj, who is the 3[rd] respondent herein, the Sub Inspector of Police, Town Police Station, Kozhikode City, to whom the complaint was forwarded as Crime No.0669/2016 of the Kozhikode Town Police Station, has registered Ext.P1 FIR against the petitioner herein as accused alleging offences punishable under Sections 341, 323, 427, 294(b) and 506(i) of the Indian Penal Code. The same is sought to be quashed. 2. Heard the learned Senior Counsel for the petitioner Sri. P. Vijaya Bhanu, the learned State Attorney Sri. K.V. Sohan for respondents 1 and 2 and the learned counsel Sri. Sebastian W.P.(C) No. 26075/2016 -:2:- Paul for the 3[rd] respondent. 3. The learned Senior Counsel for the petitioner has taken this Court through the contents of Ext.P1(6). At the very out set, it has to be stated that Ext.P1(6) only contains some blurred allegations, which are not at all specific. In legal parlance, it cannot be said that Ext.P1 reveals any of the offences alleged. For inviting the offence under Section 341 I.P.C., there should be an allegation of wrongful restraint. The same has not been alleged in Ext.P1(6). In order to invite the offence under Section 323 IPC, there should be specific allegation as to the voluntarily causing of hurt by the accused concerned. Apart from the vague allegation that the 3[rd] respondent and other media persons were assaulted, there is no specific allegation to bring out the ingredients of the offence under Section 323 IPC. 4. Regarding the offence under Section 506(i) IPC, there are no specific allegations to bring out its ingredients. Regarding W.P.(C) No. 26075/2016 -:3:- the offence under Section 427 IPC, also it has not been specifically stated that as to what was the wrongful loss caused and there is no allegation to bring out an offence of mischief. Matters being so, the offences punishable under Sections 427 and 506(i) IPC also will not lie. Regarding the offence under Section 294(b) IPC, it has to be noted that the obscene words allegedly uttered have not been stated. Apart from that, there is no allegation that the petitioner had uttered any obscene words containing sexually coloured remarks. Matters being so, there is absolutely nothing to invite an offence punishable under Section 294(b) IPC also. 5. This is a case wherein the concerned police officer, who has registered the crime has registered the crime on the basis of Ext.P1(6) alone. The concerned officer could have recorded the statement of the defacto complainant or the injured concerned and by treating it as FIS registered the crime. Such a course has not been adopted. Even if the present investigating W.P.(C) No. 26075/2016 -:4:- officer is recording the statement of the 3[rd] respondent or some other person again, it will only assume the status of a statement under Section 161 Cr.P.C., and the defects which have already crept in, cannot be cured. Matters being so, there is no meaning in proceeding with the investigation in Crime No.0669/20016. 6. The learned counsel for the 3[rd] respondent has invited the attention of this Court to the decision of a three Judge Bench of the Apex Court in _**Mahavir Prashad Gupta and another v. State of National Capital Territory of Delhi and others** [AIR 2000 SC 3101]_ wherein the Apex Court had made 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 . 7. The learned Senior Counsel for the petitioner has invited the attention of this Court to the decision of the Apex Court in _**Sujit Biswas v. State of Assam** [(2013) 12 SCC 406]_ wherein it was held: W.P.(C) No. 26075/2016 -:5:- _“Undoubtedly, the FIR lodged has disclosed the previous statement of the informant which can only be used to either corroborate or contradict the maker of such statement. However, in the event that the informant is a person who claims to know the facts, and is also closely related to the victim, it is expected that he would have certainly mentioned in the FIR, all such relevant facts. The omission of important facts affecting the probability of the case, is a relevant factor under Section 11 of the Evidence Act to judge the veracity of the case of the prosecution. (Vide: Ram Kumar Pandey v. State of Madhya Pradesh, AIR 1975 SC 1026”_ 8. Therefore, investigation of the crime in this case seems to be quite unnecessary and the entire proceedings initiated pursuant to Ext.P1 FIR in Crime No.0669/2016 of the Kozhikode Town Police Station, are liable to be quashed. W.P.(C) No. 26075/2016 -:6:- In the result, this Writ Petition is allowed and the entire proceedings initiated pursuant to Ext.P1 FIR in Crime No.0669/2016 of the Kozhikode Town Police Station, are hereby quashed. **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.