Padmanabhan Nair v. Samantha and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **Crl.MC.No.3761 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CC 95/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,KOZHIKODE** **CRIME NO.471/2017 OF Kakkur Police Station , Kozhikode** ## **PETITIONER/S:** ## **PADMANABHAN NAIR** **AGED 73 YEARS, S/O.NARAYANAN NAIR, NABHAS, MUTHIYERI PARAMBA, PALATH AMSOM, DESOM, KOZHIKODE DISTRICT.** **BY ADVS. SRI.P.V.ANOOP SRI.M.P.PRIYESHKUMAR SRI.K.V.SREERAJ** ## **RESPONDENT/S:** **1 SANTHA AGED 55 YEARS, W/O.LATE VASUDEVAN, MUTHIYERI HOUSE, PALATH P.O., KAKKODI (VIA), PALATH BAZAR, KOZHIKODE DISTRICT, PIN-673611.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **R1 BY ADV. VINOD SINGH CHERIYAN R1 BY ADV. T.M.KHALID R1 BY ADV. K.P.SUSMITHA** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3761 OF 2018** **2** ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = Crl.M.C. No.3761 of 2018** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 27[th] day of November, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec. 482 of the Cr.P.C. is as follows : _“....to quash the entire proceedings in CC No. 95/2018 on the files of Judicial First Class Magistrate Court-III, Kozhikode.”_ 2. Heard Sri.P.V.Anoop, learned counsel appearing for the petitioner/sole accused, Sri.Santhosh Peter, learned Public Prosecutor appearing for R2-State of Kerala and Sri.Vinod Singh Cherian, learned counsel appearing for contesting respondent No.1 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure-E/R1(a) FIR in Crime No.471/2017 of Kakkur Police Station, Kozhikode for offences punishable under Secs.354A, 294(b), 506 and 509 of the IPC on the basis of Annexure-R1(g) First Information Statement dated 28.12.2017 submitted by the 1[st] respondentlady defacto complainant which has led to the pendency of calendar case, CC No.95/2018 on the file of the Judicial First Class Magistrate Court-III, Kozhikode. The police after investigation has filed the impugned **Crl.MC.No.3761 OF 2018** **3** Annexure-A/R1(f) final report/charge sheet on 2.2.2018 in the said Annexure-E/R1(a) Crime No.471/2017 of Kakkur Police Station as against the petitioner/accused for the abovesaid offences. Annexure-R1(b) documents would form the memorandum of evidence submitted along with Annexure-A/Annexure-R1(f) final report/charge sheet. 4. The counsel for the petitioner would contend that the impugned criminal proceedings have been set in motion on the basis of patently false and factually wrong allegations and only out of malicious considerations due to the property disputes between the petitioner and the 1[st] respondent, who are neighbours and further that, the perusal of the impugned criminal proceedings would clearly show that the 1[st] respondent has been changing her stand from the earlier stage of the case and thus developed new versions etc. 5. Per contra, Sri.Santhosh Peter, learned Public Prosecutor appearing for R2-State of Kerala and Sri.Vinod Singh Cherian, learned counsel appearing for R1-lady defacto complainant would submit on the basis of various aspects in this case and more particularly, the materials produced along with the counter affidavit filed by the 1[st] respondent that the impugned criminal proceedings are supported by proper materials and that the abovesaid allegations of the petitioner may not be the basis for exercise of inherent powers under Sec.482 of the Cr.P.C. and it is for the **Crl.MC.No.3761 OF 2018** **4** petitioner to raise all his contentions before the trial court in appropriate manner and that the prayer for quashment of the impugned criminal proceedings are thus liable to be rejected by this Court etc. 6. The brief of the prosecution case is that on 8.12.2017, when the lady defacto complainant was passing through a bazaar in the locality, the petitioner/accused was standing there, had shown ugly gesticulations and gestures and had abused her in extremely foul language and that he had urinated in the public road when she was passing by and that he has thereby committed the abovesaid offences etc. It appears that the pleadings and materials on record that the petitioner and the 1[st] respondent are neighbours having neighbouring properties. The petitioner is an elderly senior citizen aged more than 73 years now. The 1[st] respondent –lady defacto complainant, was then a member of the Block Panchayat concerned. 7. From the materials, it is very clear that there were some ongoing disputes between the petitioner and the 1[st] respondent regarding the allegations raised by the petitioner that a very huge and old tamarind tree (Éá{ßÎø¢) standing in the property of 1[st] respondent and it is lying very close to the adjoining property of the petitioner, had fallen down causing serious damage to the property of the petitioner as well as his coconut trees **Crl.MC.No.3761 OF 2018** **5** and that the 1[st] respondent was not taking any steps to cut and remove the said tree in spite of the request. 8. Annexure-B is a lawyer’s notice dated 25.11.2017 submitted by the petitioner to the 1[st] respondent stating in detail the various allegations made by him as against the 1[st] respondent in respect of the alleged incidents of falling down of a huge tamarind tree lying in the property of the 1[st] respondent into the property of the petitioner causing loss to him etc. A reading of Annexure-B lawyer’s notice would give an indication that the petitioner was raising various disputes in the matter with the 1[st] respondent, who is his immediate neighbour. Pursuant thereto, the 1[st] respondent has submitted Annexure-C reply lawyer’s notice dated 19.12.2017 to the petitioner dealing with the various allegations raised by the petitioner in Annexure-B notice and hotly denying it and submitting that the abovesaid allegations made by the 1[st] respondent are factually wrong and that the 1[st] respondent is warned not to proceed with any proposed litigative venture in that regard etc. 9. The most relevant part of the matter as regards Annexure-B and Annexure-C is that Annexure-C reply notice dated 19.12.2017 has been issued by the 1[st] respondent after the alleged incidents which is said to have happened on 8.12.2017 as projected in Annexure-E FIR. The reading of Annexure-C reply lawyer’s notice dated 19.12.2017 would indicate that **Crl.MC.No.3761 OF 2018** **6** there is not even a remote whisper anywhere made therein by the 1[st] respondent about any of the incidents which are said to have happened on 8.12.2017 and subsequently on 9.12.2017 etc. as alleged in the abovesaid Annexure-E/R1(a) FIR. There is certainly strong force in the submission of the counsel for the petitioner that if as a matter of fact the alleged incidents narrated in Annexure-E FIR and the materials in connection thereto were true, then in a case like this, where the petitioner has raised various disputes in Annexure-B lawyer’s notice, certainly the 1[st] respondent would have mentioned briefly about such alleged incidents, which happened on 8.12.2017 and 9.12.2017 in order to buttress her point that the allegations made in Annexure-B lawyer’s notice are only false and motivated in order to further harass her after the alleged incidents on 8.12.2017, 9.12.2017 etc. 10. Suffice to say that there is not even a whisper anywhere in Annexure-C reply notice dated 19.12.2017 sent by the 1[st] respondent to the petitioner in respect of the alleged incidents which have happened on 8.12.2017 and 9.12.2017 as referred to in Annexure-E FIR. Further, Annexure-R1(g) is the First Information statement dated 28.12.2017 submitted by the 1[st] respondent to the police authorities which resulted in Annexure-R1(a) FIR. A reading of Annexure-R1(g) FI statement dated 28.12.2017 gives a clear indication that only one untoward incident has **Crl.MC.No.3761 OF 2018** **7** happened and that is on 8.12.2017. The allegations in Annexure-R1(g) is to the effect that while the 1[st] respondent was passing through the area, the petitioner used to frequently show ugly and obscene gesticulations and gestures to her and also used to pass urine in the public road, whenever she used to pass by earlier. Further that, on the day in question, he had shown gesticulations to her and that she had earlier complained to the police on 11.12.2017 etc. 11. It is very relevant to note that there is not even a remote whisper of an allegation in Annexure-R1(g) dated 28.12.2017 that the petitioner has indulged in exhibitionism. This the Court would say in view of the subsequent statement given by the 1[st] respondent to the police in this case on 29.12.2017 (which is the day after the submission of AnnexureR1(g) FI statement dated 28.12.2017). In the said additional statement given by the 1[st] respondent to the police under Sec.161 Cr.P.C. on 29.12.2017 is one at Annexure-R1(e) dated 29.12.2017, the 1[st] respondent would make drastic improvisations in her case. In AnnexureR1(e), it is alleged that when she was passing through the area on 8.12.2017 at about 11 a.m., the petitioner under the guise of passing urine had even went to the extent of lifting his lungi and exhibiting his private parts to her and had shown further ugly gesticulations to her. Whereas in Annexure-R1(g), the allegation is that **Crl.MC.No.3761 OF 2018** **8** when she was passing by, the petitioner had then passed urine in the public road and thereafter, he had shown ugly gesticulations and there are no allegations in Annexure-R1(g) about the alleged incident of exhibitionism as referred to hereinabove. Further, in Annexure-R1(e), there is yet another incident narrated which is said to have happened on 9.12.2017 at about 4 p.m., there is no mention in Annexure-R1(g) about the said incident, which is said to have happened on 9.12.2017 as referred to in subsequently in Annexure-R1(e). In Annexure-R1(e), it is alleged that on 9.12.2017 at about 4 p.m., when the lady was passing by in the locality concerned, the petitioner had come near her and hit on her shoulder and then had shown some gesticulations and had used obscene and foul languages and that this was noted by two persons in the locality, one Sri.Babu Rajan and one Sri.Santhosh etc. 12. Annexure-R1(c) and Annexure-R1(d) are the statements given by the those two persons to the police in the course of investigation in this case in terms of Sec. 161 of the Cr.P.C. In Annexure-R1(c) and AnnexureR1(d), those two persons would state that when they were passing through the area in question on 9.12.2017 at about 4 p.m., they have seen the petitioner hitting on the shoulder of the lady and that then they has asked the lady as to what has happened and she had not said anything and passed by etc. **Crl.MC.No.3761 OF 2018** **9** 13. After hearing both sides, it has been noted that the petitioner and the 1[st] respondent are immediate neighbours and they are already having some long pending disputes and issues between them in respect of their adjoining properties. The only incident narrated in Annexure-R1(g) FI statement dated 28.12.2017 is the one, which is said to have happened on 8.12.2017. There is no mention in Annexure-R1(g) about any incident which is said to have happened on 9.12.2017. This the Court would say as Annexure-R1(g) has been given on 28.12.2017 which is long after the abovesaid alleged incidents in question. Further, the incident is said to have happened on 8.12.2017 and the 1[st] respondent was then the member of the Block Panchayat and nothing prevented her from immediately approaching the police and getting the FIR registered. In the instant case, Annexure-E/Annexure-R1(a) FIR has been registered as late as on 28.12.2017 as Annexure-R1(g) FI statement has been lodged by the 1[st] respondent only on 28.12.2017. There is no explanation whatsoever forthcoming from the prosecution about the long delay as between 8.12.2017, the date of the incident and the lodging of the FIR on 28.12.2017. In Annexure-R1(g), the only allegation is about the incident on 8.12.2017 and there is also mention that the petitioner used to show such ugly gesticulations on earlier occasions also and that he used to urinate in the public road, whenever she used to pass by. However, there are no **Crl.MC.No.3761 OF 2018** **10** allegations in Annexure-R1(g) dated 28.12.2017 that the petitioner had either passed urine, when she was passing by in the public road or that he had indulged in exhibitionism on 8.12.2017 or any other day thereafter. So also, there are no allegations in Annexure-R1(g) about the incident on 9.12.2017 that the petitioner had hit on her shoulder which was seen by other two persons. If actually the said incident on 9.12.2017 had really happened, then nothing prevented the 1[st] respondent to cogently and precisely give the said information to the police by lodging Annexure-R1(g) FI statement on 28.12.2017. This is all the more so, as Annexure-R1(g) is submitted much after the incident. 14. Further, it is to be borne in mind that the 1[st] respondent is quite highly placed in the society as she is the member of the Block Panchayat of the area concerned and Annexure-C would show that earlier she had even secured legal advice in respect of the property dispute with the petitioner. Therefore, it is not as if the 1[st] respondent was having any socio-economic handicap so as to prevent her from furnishing all the correct details. Therefore, the omission to state in Annexure-R1(g) FI statement about the incident on 9.12.2017 etc. has to be viewed very seriously. A dramatic improvisation is made by the 1[st] respondent by giving a further statement on 29.12.2017 as per Annexure-R1(e). As stated hereinabove, there one serious improvisation made is that the petitioner had indulged in **Crl.MC.No.3761 OF 2018** **11** exhibitionism on 8.12.2017, which allegation is conspicuously absent in Annexure-R1(g). Further, the new allegations regarding the incident on 8.12.2017 and hitting on her shoulder and same has been witnessed by two persons in the locality etc. are raised for the first time in Annexure-R1(e) further statement given on 29.12.2017. 15. Further, none of these allegations are even remotely whispered to or referred to by the 1[st] respondent while giving her Annexure-C reply lawyer’s notice dated 19.12.2017 to the petitioner regarding the disputes between two neighbours. As observed hereinabove, if as a matter of fact the abovesaid incidents referred to in the impugned criminal proceedings were true, then certainly the 1[st] respondent would have raised those matters in Annexure-(c) reply notice and to buttress her point that the allegations in Annexure-B lawyer’s notice has been raised by the petitioner falsely and maliciously only on account of his frequent harassment and ugly behavior as alleged in respect of the incidents on 8.12.2017 and 9.12.2017 etc. Therefore, the omission to state the total and complete absence of any such allegations or even, it is a brief mention of the same in Annexure-C reply notice dated 19.12.2017 has to be viewed very seriously. It has been borne in mind that the rival parties are warring neighbours in view of their ongoing property disputes as can be seen from a reading of Annexure-B and Annexure-C notices sent by the respective lawyers to each other. There **Crl.MC.No.3761 OF 2018** **12** is dramatic improvisation in the case set up by the 1[st] respondent as noted hereinabove. 16. The long delay in lodging of the FIR is not explained. In that regard, it is pertinent to point out that it is well settled by a series of rulings of the Apex Court and various High Courts in decisions as in _**State of Andrapradesh v. N.Madhusoodahanan Rao**_ [(2008) 15 SCC 582] wherein it has been held that Delay in lodging FIR will more often than not, result in embellishments and exaggerations, which is a creatoin of afterthough. Delayed report, not only gets bereft of advantages of spontaneity, but the danger of introduction of coloured version exaggerated account of incident or a concocted story as a result of deliberations and consultation also creeps in, casting a serious doubt on its veracity. Therefore, it is highly essential that delay in lodging the FIR should be satisfactorily explained by the prosecution. Resultantly, when the substratum of evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety. 17. In the instant case, the incident is said to have happened on 8.12.2017 whereas the FIR has been lodged only on 28.12.2017. In the facts of this case, this Court is constrained to hold that the delay in that regard is quite substantial and it is not explained properly by the prosecution. Here, in view of the various aforementioned aspects, this Court is constrained to **Crl.MC.No.3761 OF 2018** **13** take the view that it should be highly unsafe to treat the prosecution story as one having believability and credibility. The very substratum of the prosecution story appears to be on very shaky grounds. The parties are immediate neighbours. The petitioner is 73 year old elderly senior citizen. The 1[st] respondent was then a member of the Block Panchayat. The said parties were having long pending disputes between them as can be seen from Annexure-B and Annexure-C lawyer’s notices. From the totality of the facts and circumstances of this case, this Court is inclined to take the view that the counsel for the petitioner has made out a strong probable case as the allegations raised are factually wrong and has been made for extraneous and ulterior considerations and at any rate, the incidents would have happened not in a manner as suggested by the prosecution, but in some other manner. 18. It has been held by the Apex Court in the case _**Shakson Belthissor v. State of Kerala & another**_ reported in [(2009) 14 SCC 466] that where a complaint is found to be vexatious or frivolous or oppressive, the power under Sec.482 Cr.P.C could befittingly exercised to quash such impugned criminal proceedings. In the case _**State of Orissa**_ ## _**through Kumar Raghvendra Singh & others v. Ganesh Chandra**_ _**Jew**_ reported in [(2004) 8 SCC 40], the Apex Court has held that the impugned criminal proceedings can be quashed where the complaint **Crl.MC.No.3761 OF 2018** **14** involves malafides. In the case _**Lambodaran Nair v. State of Kerala**_ reported in [2003 (1) KLT SN 115] Case No.83 (SC) it has been held by the Apex Court that the power under Sec.482 Cr.PC can be exercised where criminal proceedings were manifestly attended with malafides or to wreck personal vengeance. In the case _**Om Prakash v. State of Jharkhand**_ reported in [(2012) 12 SCC 72], the Supreme Court has categorically held that if it appears to the trained judicial mind that continuance of a prosecution will lead to abuse of process of law or miscarriage of justice, the power under Sec.482 of Cr.P.C. must be exercised and the proceedings must be quashed. 19. Hence, taking into the overall facts and circumstances of this case, this Court is constrained to take the view that the impugned criminal proceedings have been set in motion on account of the extraneous and ulterior considerations, but at any rate, the incidents and events would have happened not in the manner as alleged by the 1[st] respondent, but could have happened in some other manner. The petitioner is an elderly senior citizen aged more than 73 years. 20. Taking note of the overall facts and circumstances of this case, this Court is inclined to take the view that the impugned criminal proceedings are liable for interdiction at the hands of this Court in exercise of the extraordinary inherent powers conferred under Sec. 482 of the **Crl.MC.No.3761 OF 2018** **15** Cr.P.C. In that view of the matter, it is ordered that Annexure-A/R1(f) final report/charge sheet filed in Annexure-E/R1(a) FIR in crime No.471/2017 of Kakkur Police Station, Kozhikode which has led to the pendency of calendar case, CC No.95/2018 on the file of the Judicial First Class Magistrate Court-III, Kozhikode as against the petitioner/accused and all further consequential proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. The petitioner will produce certified copies of this order before the investigating officer concerned as well as the Judicial First Class Magistrate Court-III, Kozhikode, who is dealing with calendar case, CC No.95/2018 for necessary information. With these observations and directions, the above Criminal Miscellaneous case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.3761 OF 2018** **16** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A- CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.95/2018 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE.** - **ANNEXURE B- TRUE COPY OF THE LAWYER NOTICE DATED 25/11/2017 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.** - **ANNEXURE C- TRUE COPY OF THE REPLY DATED 19/12/2017 TO ANNEXURE B LAWYER NOTICE.** **ANNEXURE D- TRUE COPY OF THE ORDER DATED 03/01/2018 IN CRL.M.C.NO.1964/2017 ON THE FILE OF SESSIONS COURT, KOZHIKODE. ANNEXURE E- CERTIFIED COPY OF THE FIR IN CRIME NO.471/17 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE. ANNEXURE R1 A CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO-471/2017 OF KAKKOOR POLICE STATION. ANNEXURE R1 B CERTIFIED COPY OF THE MEMORANDUM OF EVIDENCE IN CRIME NO-471/2017 OF KAKKOOR POLICE STATION. ANNEXURE R1 C CERTIFIED COPY OF THE STATEMENT OF EYE WITNESS CW2 SANTHOSH IN CRIME NO-471/2017 OF KAKKOOR POLICE STATION** **ANNEXURE R1 D CERTIFIED COPY OF THE STATEMENT OF EYE WITNESS CW3 BABURAJAN IN CRIME NO-471/2017 OF KAKKOOR POLICE STATION ANNEXURE R1 E CERTIFIED COPY OF THE STATEMENT OF DEFACTO COMPLAINANT/1ST RESPONDENT HEREIN DATED 29.12.2017 IN CRIME NO-471/2017 OF KAKKOOR POLICE STATION ANNEXURE R1 F CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO471/2017 OF KAKKOOR POLICE STATION ANNEXURE R1 G CERTIFIED COPY OF THE STATEMENT OF DEFACTO COMPLAINANT/ 1ST RESPONDENT HEREIN DATED 28.12.2017 IN CRIME NO-471/2017 OF KAKKOOR POLICE STATION**