Pappu @ Praveen and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 12TH DAY OF FEBRUARY 2014/23RD MAGHA, 1935 Crl.MC.No. 3822 of 2012 () ----------------------------------- AGAINST THE ORDER/JUDGMENT IN CC 1069/2011 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, KAYAMKULAM ## PETITIONERS/PETITIONERS/ACCUSED NOS.1 TO 6: ---------------------------------------------------------------------- 1. PAPPU @ PRAVEEN, AGED 20 YEARS, S/O. KUTTAPPAN, PUTHUMANGALATHU HOUSE, THEKKANAL MURIYIL, KRISHNAPURAM VILLAGE. 2. VINODH, AGED 30 YEARS, S/O.VIJAYAN, PUTHUMANGALAM VADAKATHIL, THEKKANAL MURIYIL, KRISHNAPURAM VILLAGE. 3. VIJAYAN, AGED 55 YEARS S/O.KUTTAPPAN, PUTHUMANGALAM VADAKATHIL, THEKKANAL MURIYIL, KRISHNAPURAM VILLAGE. 4. VIJAYAKUMARI, AGED 48 YEARS, W/O. MOHANAN, PUTHUMANGALAM VADAKATHIL, THEKKANAL MURIYIL, KRISHNAPURAM VILLAGE. 5. DHANISH, AGED 20 YEARS, S/O. MOHANAN, PUTHUMANGALAM VADAKATHIL, THEKKANAL MURIYIL, KRISHNAPURAM VILLAGE. 6. KUTTAPPAN, AGED 51 YEARS, S/O. KOCHUKARUMBAN, PUTHUMANGALAM VADAKATHIL, THEKKANAL MURIYIL, KRISHNAPURAM VILLAGE. BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI. M. SUNIL KUMAR SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM Crl.MC.No. 3822 of 2012 () ## RESPONDENTS/COMPLAINANT : ------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. * ADDL. R2 IMPLEADED: ADDL. R2. SMT. REENA, W/O. SALIM SHAH, AGED 41 YEARS, KUNNEL HOUSE, KRISHNAPURAM VILLAGE, NJAKKANAL MURI, KAYAMKULAM, ALAPPUZHA DISTRICT. * ADDL. R2 IS IMPLEADED AS PER ORDER DATED 14.12.2012 IN CRL.M.A.NO.8180 OF 2012 IN CRL.M.C.3822 OF 2012. R1 BY PUBLIC PROSECUTOR SRI. A.J. JOSE AEDAIODI R2 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3822 of 2012 () ## APPENDIX PETITIONERS’ ANNEXURES : ANNEXURE A : COPY OF THE FINAL REPORT FILED BY DY.S.P. KAYAMKULAM WHICH IS PENDING ON THE FILE OF COURT OF SESSIONS ALAPPUZHA AS SC 953/2010. ANNEXURE B : COPY OF THE F.I. STATEMENT AND FIR IN CRIME NO.521/2010 OF KAYAMKULAM POLICE STATION. ANNEXURE C : COPY OF THE FINAL REPORT IN CRIME NO.521/2010 OF KAYAMKULAM POLICE STATION. ANNEXURE D : COPY OF THE REPRESENTATION DTD.28.2.2011 SUBMITTED BY THE DEFACTO COMPLAINANT BEFORE THE S.P., ALAPPUZHA. ANNEXURE E : COPY OF THE REPORT DTD.3.2.2011 OF THE DY.S.P., DCRB, ALAPPUZHA. ANNEXURE F : COPY OF THE COMMUNICATION DTD.7.3.2011. ANNEXURE G : COPY OF THE FINAL REPORT FILED IN CRIME NO.521/2011 OF KAYAMKULAM POLICE STATION AFTER FURTHER INVESTIGATION. RESPONDENTS' ANNEXURES : NIL // True Copy // P.A. To Judge DSV/18/02 ## P. UBAID, J. ---------------------------------------- Crl.M.C.No. 3822 of 2012 ---------------------------------------Dated this the 12[th] day of February, 2014 ## O R D E R Petitioners herein are the accused facing trial in C.C.No.1069 of 2011 under Sections 341, 323 and 324 of the Indian Penal Code before the Judicial First Class Magistrate's Court, Kayamkulam. The first petitioner is the defacto complainant in S.C.No.953 of 2010 pending before the Court of Session, Alappuzha. The offences involved in the said case are under Sections 447, 427, 294(b), 323 and 324 of the Indian Penal Code and also under Section 3 (1) (x) (xi) and (xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The accused in the said Sessions Case is one Salim Shah. The allegation in the said case is that the first petitioner herein was assaulted by the said Salim Shah and he was also abused and humiliated in public view by calling his caste name. The wife of the said Crl.M.C.No. 3822 of 2012 2 Salim Shah is the defacto complainant in C.C.No.1069 of 2012. The case of the petitioner's is that the complaint of the defacto complainant in the said case is in fact a false one and that she brought such a prosecution as a counter blast to the other Sessions Case where her husband is implicated as accused. Now the petitioners seek an order from this Court under Section 482 of the Code of Criminal Procedure quashing the entire proceedings in C.C.No.1069 of 2012 before the Judicial First Class Magistrate's Court, Kayamkulam. 2. On a perusal of the case records and on hearing both sides, this Court does not find any reason or circumstance to quash the criminal proceedings now pending against the petitioners. On a perusal of the records this Court finds that the incident alleged in the said case occurred within the proximity of the scene of incident in the other case, and that the two incidents alleged are interconnected. Of course to attract the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Crl.M.C.No. 3822 of 2012 3 Atrocities) Act, the alleged offence must have been committed within public view. It is not enough that it was committed in a public place. Any way, this Court is not inclined to go into the factual aspects in S.C.No.953 of 2010. 3. It was submitted by the learned counsel for the petitioners that the scene of incident in C.C.No.1069 of 2012 is entirely different from the scene of incident in the other case, and that the defacto complainant in this case does not have any consistent case or version regarding the alleged acts of assault. It was submitted that she had earlier preferred a complaint which was referred by the Police as per a refer charge sheet, copy of which is produced as Annexure C. But later, she moved the District Superintendent of Police with request for an effective investigation. Acting on the side representation, the District Superintendent of Police, Alappuzha ordered further investigation on 07.03.2011. Accordingly the crime was reopened and it was further investigated by the Deputy Superintendent of Police. On investigation, the Deputy Crl.M.C.No. 3822 of 2012 4 Superintendent of Police found that many of the allegations in the complaint are true, and accordingly he submitted Annexure G Final Report, which is now sought to be quashed. 4. Of course this Court finds that during further investigation, the defacto complainant had given some statements deviating from the earlier statements, but she has explained that she happened to give such a statement under some mistake of facts. In Annexure G case the Police has cited so many incident witnesses to prove the alleged incident of assault on the defacto complainant. This Court does not find any material change in the scene of incident, and this Court finds that the incident alleged in Annexure G case in fact happened within the proximity of the scene of incident involved in the other case, more or less as a continuation of the first incident. Whether the case sought to be quashed is in fact a counter case is a matter to be decided by the trial court. If it is really a counter case, it will have to be tried simultaneously with S.C.No.953 of 2010. Crl.M.C.No. 3822 of 2012 5 Whether the complaint which led to Annexure G case is false, or whether the allegations therein are factually wrong, are all matters to be looked into by the trial court. This Court does not think at this stage that the said case was brought as a counter blast to the other Sessions Case where the first petitioner herein is the defacto complainant. On a perusal of the materials, this Court finds that persons on both sides had sustained injuries in the alleged incident. Whether they sustained injuries in the very same incident or whether one incident occurred as a continuation of the other incident, will have to be looked into and decided by the trial court. In the above factual situation, the prosecution cannot be quashed by this Court saying that it is a counter blast. 5. In Amit Kapoor v. Ramesh Chander reported in [2012 (4) KLT S.N.109 (C.No.98) SC] the Honourable Supreme Court has explained in detail, the various circumstances in which the powers under Section 482 of the Code of Criminal Procedure can be exercised to quash proceedings or prosecutions. While declaring the Crl.M.C.No. 3822 of 2012 6 circumstances and considerations for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, the honourable Supreme Court has given a very significant caution that the courts have to observe that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, and the court is concerned primarily with the allegations taken as a whole, whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. The honourable Supreme Court has also held that it is neither necessary, nor is the court called upon to hold a fullfledged enquiry or to appreciate the evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 6. In the light of the guidelines made by the honourable Supreme Court in the cited decision, this Court finds that the factual aspects involved in the case sought to be quashed cannot be gone into by this Court, especially when the court Crl.M.C.No. 3822 of 2012 7 finds that persons on both sides had sustained injuries in the alleged incident. Whether the case sought to be quashed is a counter case or a counter blast, will have to be decided by the trial court. If it is really a counter case, it will have to be tried in the court of Sessions, simultaneously with the other case. This Court does not find any factual situation or legal ground for invoking the power under Section 482 of the Code of Criminal Procedure in this case, and the Crl.M.C. is accordingly liable to be dismissed. In the result, this Crl.M.C is dismissed. Sd/- ## P. UBAID (JUDGE) // True Copy // P.A. To Judge DSV/15/02 # Crl.M.C.No. 3822 of 2012 8