Paul K. Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** **Crl.MC.No.3779 of 2019** **CRIME NO.476/2019 OF CENTRAL POLICE STATION, ERNAKULAM** ## **PETITIONER/1ST ACCUSED:** **PAUL K.VARGHESE, AGED 47 YEARS, S/O. VARGHESE, HOUSE NO.40/6328-A KUNNATH BUILDING, T/D ROAD, NORTH END, KOCHI-35.** **BY ADVS.SRI.VIPIN NARAYAN SMT.A.A.GEETHA SMT.NEENA JAMES SRI.K.P.S.JALALUDDEEN MOHMMED** ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** - **1 THE STATE OF KERALA, REPRESENTED BY PUBIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 THE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695010.** - **3 THE INSPECTOR GENERAL OF POLICE, KOCHI-682031.** - **4 THE CITY POLICE COMMISSIONER, ERNAKULAM, KOCHI-682011.** - **5 THE DEPUTY COMMISSIONER, REVENUE TOWER, KOCHI-682011.** - **6 DISTRICT POLICE CHIEF, RURAL, ALUVA-683101.** - **7 THE ASSISTANT COMMISSIONER OF POLICE, CENTRAL STATION, ERNAKULAM-682305.** - **8 THE ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA, KAKKANAD, ENRAKULAM-682021.** - **9 THE CIRCLE INSPECTOR OF POLICE, ERNAKULAM SOUTH POLICE STATION, ERNAKULAM-682015.** Crl.MC:3779/2019 2 - **10 THE STATION HOUSE OFFICER, PANANGAD POLICE STATION, THRIPUNITHURA-682506.** - **11 THE STATION HOUSE OFFICER, MARADU POLICE STATION, MARADU-682304.** - **12 THE STATION HOUSE OFFICER, ERNAKULAM NORTH POLICE STATION, ERNAKULAM-682018.** - **13 THE STATION HOUSE OFFICER, PUTHENCRUZ POLICE STATION, PUTHENCRUZ-682308.** - **14 THE STATION HOUSE OFFICER, CENTRAL POLICE STATION, ERNAKLULAM-682018.** - **15 THE STATION HOUSE OFFICER, CHOTTANIKKARA POLICE STATION, CHOTTANIKKARA-682312.** - **16 THE STATION HOUSE OFFICER, HILL PALACE POLICE STATION, THRIPUNITHURA-682309.** - **17 K.S.CHINMAYAN, AGED 47 YEARS, S/O.K.K.SREEDHARAN, PURAKKELI HOUSE, MARADU P.O., ERNKULAM-682040, (PH.918078792947)** **BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR** **R17 BY ADV.SRI.A.S.SASIDHARAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC:3779/2019 3 ## **ORDER** An Advocate, against whom a criminal proceeding was initiated by his former client, has approached this Court seeking to quash the proceedings. He asserts that the initiation of the criminal prosecution is _mala fide_ and vexatious with intent to harass him. He has also sought for a direction to the respondents 3 and 4 to initiate necessary action for raising false charges. 2. Facts germane for deciding the issues raised would show that on 5.3.2019, Crime No.476 of 2019 was registered at the Ernakulam Central Police Station arraying the petitioner herein as the 1[st] accused. The offence alleged against him are under Sections 386, 294(b) r/w Section 34 of the IPC and Section 28 of the Arms Act, 1959. The de facto complainant is the 17[th] respondent herein. 3. Annexure-38 is the FIR registered against the petitioner and one Saju Thuruthikkunnel at the instance of the 17[th] respondent. It would be of immense significance to mention that it was in respect of an incident which took place on 3.11.2018 that the crime was registered on 5.3.2019. The allegation is that on 26.10.2018, the 17[th] respondent was called over phone apparently by some police men and he was asked to come to the Assistant Commissioner’s office at Ernakulam. On 3.11.2018, a couple of police men came to his door Crl.MC:3779/2019 4 steps and he was asked to accompany them to the Central Police Station. As the ASP was not available, the de facto complainant decided to have a cup of tea. After having tea, while he was returning back, he found the petitioner and one Saju Thuruthikkunnel proceeding towards him. Since his relationship with those persons were not cordial, to avoid confrontation, he hid himself in the ground floor of the Empire building, a few metres away from the Police Station. The accused spotted him and he was asked to sign on two papers purportedly for enabling Saju Thuruthikkunnel for obtaining insurance amount in respect of his car. When he refused, the petitioner as well as the 2[nd] accused is alleged to have abused and criminally intimidated him. It is also alleged that the petitioner took out a pistol from his pocket and pointed it towards the informant and threatened him. Fearing for his life, the de facto complainant is alleged to have signed on the papers and thereafter, made good his escape. The above is the gist of allegations in the earliest statement. 4. Sri.P.Vijaya Bhanu, the learned Senior Counsel appearing for the petitioner as instructed by Sri.Revikrishnan, submitted that the allegations are clearly false and _mala fide_ , and has been levelled with intent to spite him. The learned Senior Counsel would argue that the petitioner used to be the Advocate of the 17[th] respondent and he used Crl.MC:3779/2019 5 to appear on his behalf before various courts. Their relationship became strained and the petitioner was forced to issue a notice on 19.8.2016, informing the de facto complainant of his intention to relinquish his engagement. This irked the de facto complainant. He trespassed into the office of the petitioner and abused him. Based on the information furnished by the petitioner, Crime No.2015 of 2016 was registered on the same day. Investigation was completed and the case is pending before the learned Magistrate as C.C. No.1538 of 2016. Later, alleging that the petitioner herein had committed the offence of cheating, information was furnished, based on which, Crime No.1581 of 2016 of the Maradu Police Station was registered. In the course of investigation, it was revealed that the petitioner had no role to play and he was removed from the array of the accused. Thereafter, the 17[th] respondent filed Annexures-7, 8 and 9 complaints against the petitioner and all those complaints were found to be false after investigation. He would further contend that a complaint was lodged by the 17[th] respondent against a Sub Inspector of Police and this matter was taken up before the State Police Complaints Authority. A C.C.T.V footage, showing the 17[th] respondent exposing his genitals in front of a women staff of an old age home was produced before the State Police Complaints Authority and after perusing the same, the Crl.MC:3779/2019 6 authority refused to entertain the said complaint. According to the learned Senior Counsel, the sequence of events and the gross delay in lodging the complaint against the petitioner would show that the allegations are frivolous and vexatious and is intended only to harass the petitioner. According to the learned Senior Counsel, in spite of the very poor antecedents of the 17[th] respondent and the long delay in setting the law in motion, the Police have registered the crime even without conducting a preliminary enquiry. 5. In view of the serious nature of the allegations against the 17[th] respondent, notice was issued to him. The State was also ordered to file a statement. 6. In the statement filed by the District Police Chief (Rural), Aluva, it has been stated that a detailed investigation was conducted by examining the Call Data records (CDR) and tower location of the mobile phones of the de facto complainant and the accused. It was found that the de facto complainant and the accused were not present in the same place on 3.11.2018 as alleged in the F.I.statement lodged by the 17[th] respondent. The investigation has revealed that the allegations are false. It is also stated that the 17[th] respondent is the accused in C.C. Nos.383 of 2018 and 1538 of 2016 pending on the Crl.MC:3779/2019 7 files of the Judicial Magistrate of the First Class-II, Ernakulam and in three crimes registered at the Puthencrux Police Station. It is also stated that the 17[th] respondent is in the habit of filing criminal complaints against individuals and the police officers with intent to harass them. Proceedings under Section 107 of the Cr.P.C has also been initiated against him by the Sub Divisional Magistrate, Kochi. 7. The 17[th] respondent has appeared in person and he has advanced arguments. He would contend that numerous crimes have been registered against him at the instance of the petitioner though he is actually innocent. According to the 17[th] respondent, the allegations of the nature alleged in the statement furnished by him had occurred and the delay in furnishing the complaint has been properly explained. 8. I have considered the submissions advanced. From the statement of the 6[th] respondent, it is evident that the police have concluded after investigation that the allegations are frivolous and no incident of the nature alleged had taken place. Even otherwise, Annexure-3 would reveal that a crime was registered against the 17[th] respondent at the instance of the petitioner herein and the said case is pending as C.C. No.2015 of 2016. As against the petitioner, numerous complaints were lodged earlier by the 17[th] respondent and those Crl.MC:3779/2019 8 complaints were found to be false after investigation. In the above factual backdrop, his allegation that the petitioner along with one Saju Thuruthikkunnel approached him on 3.11.2018 at a place adjacent to the Central Police Station where he was summoned by the police and that he was asked to sign on certain papers cannot be believed. The incident had allegedly taken place on 3.11.2018 and the law was set in motion on 5.3.2019. If, in fact, any such incident had taken place, there was no reason for the 17[th] respondent to wait for over four months to set the law in motion, more so in view of the bad blood which existed between them. The records reveal that the petitioner herein was targetted by filing complaints on earlier occasions by the 17[th] respondent and those allegations were found to be false. 9. In **Lalita Kumari v. Government of U.P. and Others** [(2014) 2 SCC 1], the Hon’ble Supreme Court while laying down that registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation, has observed that in cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months delay in reporting the matter without satisfactorily explaining the reason for the delay, a preliminary enquiry may be made. In the case on hand, Crl.MC:3779/2019 9 apparently, there was a delay of more than four months. There is no explanation whatsoever for the delay that was occasioned. The registering officer ought to have taken note of the observations of the Apex Court in **Lalita Kumari** (supra) and should have conducted a preliminary enquiry. 10. The statement filed by the District Police Chief (Rural) would reveal that the 17[th] respondent is in the habit of filing frivolous complaints against individuals. He has targetted the petitioner herein, who was his previous lawyer, clearly to harass and vex him. A person, who is on the receiving end of false implication, especially in a case involving cognizable offences, would be tormented and he is also likely to suffer from loss of reputation. There is a reasonable possibility of him being arrested and his personal liberty would be seriously impaired. Such false implications are to be viewed seriously or else, unscrupulous persons may use it to their advantage. There are provisions in the Penal Code to curtail such practices. 11. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made _prima facie_ establish the offence. It is also for the court to take into Crl.MC:3779/2019 10 consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. (See **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Angre and Ors.** , [(1988) 1 SCC 692]; **Janata Dal v. H.S. Chowdhary and Ors.** ,[(1992) 4 SCC 305], **Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.** , [(2007) 12 SCC 1] and in **R. Kalyani v. Janak C. Mehta and Ors.** [(2009) 1 SCC 516] as well. 12. Having considered all the relevant aspects, I am of the view that the institution of the criminal proceeding against the petitioner by the 17[th] respondent is a clear abuse of process. 13. Before parting, I may hasten to observe that setting criminal law in motion against a person by giving information to the police of a cognizable offence amounts to institution of criminal Crl.MC:3779/2019 11 proceedings within the meaning of Section 211 of the IPC (see **Albert v. State of Kerala** [1965 KLT 865]). Necessarily, this aspect shall be probed by the police and if it is found that the de facto complainant had levelled false accusations with intent to cause injury, appropriate proceedings shall be initiated. If the de facto complainant approaches the respondents 4 to 16 with complaints against any person, including the petitioner herein, they shall be cautious and before registering the crime, check the authenticity of the allegations. This petition will stand allowed and all further proceedings against the petitioner in Crime No.476 of 2019 of the Ernakulam Central Police Station will stand quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE Crl.MC:3779/2019 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-1 A TRUE COPY OF THE ORDER IN I.A.NO.3826/2015 IN O.S.NO.1458/2014 ON THE FILE OF THE MUNSIFF COURT ERNAKULAM DATED 18.6.2015** **ANNEXURE-2 A TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER TO THE 17TH RESPONDENT DATED 19.8.2016 ANNEXURE-3 A TRUE COPY OF THE CHARGE IN CRIME NO.2015/2016 ANNEXURE-4 A TRUE COPY OF THE AGREEMENT FOR SALE DATED 17/9/2015 ANNEXURE-5 A TRUE COPY OF FIR 1581/2016 OF MARADU POLICE STATION DATED 1.12.2016 ANNEXURE-6 A TRUE COPY OF THE REPORT FILED BY THE SUB INSPECTOR OF POLICE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MARADU DATED 5.1.2017 ANNEXURE-7 A TRUE COPY OF THE COMPLAINT DATED 11/10/2006 AND PROCEEDINGS FROM VANITHA CELL ANNEXURE-8 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT AGAINST THE PETITIONER AND OTHER POLICE OFFICIALS BEFORE THE RANGE INSPECTOR GENERAL OF POLICE, ENRAKULAM DATED 17.2.2017 ANNEXURE-9 A TRUE COPY OF THE FALSE COMPLAINT FILED BY THE 17TH RESPONDENT AGAINST THE PETITIONER AND OTHER POLICE OFFICIALS BEFORE THE INSPECTOR GENERAL OF POLICE, DATED 23.7.2017 ANNEXURE-10 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT BEFORE THE INSPECTOR GENERAL OF PROSECUTION AGAINST THE PETITIONER AND OTHERS DATED 12.10.2018 ANNEXURE-11 A TRUE COPY OF THE COMPLAINT BEFORE THE BAR COUNCIL OF ERNAKULAM DATED 23.9.2017 ANNEXURE-12 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT AGAINST THE PETITIONER AND OTHERS THROUGH HIS WIFE BEFORE THE WOMEN COMMISSION, ERNAKULAM DATED 2.8.2018 ANNEXURE-13 A TRUE COPY OF THE REPORT FILED BY THE DISTRICT CHIEF ERNAKULAM TO THE CHAIR PERSON WOMEN'S COMMISSION DATED 13.3.2019** Crl.MC:3779/2019 13 - **ANNEXURE-14 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT BEFORE THE CIRCLE INSPECTOR OF POLICE, PUTHENCRUZ POLICE STATION DATED 21.11.2016** - **ANNEXURE-15 A TRUE COPY OF THE COMPLAINT FILED BY THE COMPLAINANT BEFORE THE SUB INSPECTOR OF POLICE, PANANGAD POLICE STATION DATED 4.11.2016** - **ANNEXURE-16 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT BEFORE THE INSPECTOR GENERAL OF POLICE, ERNAKULAM AGAINST CIRCLE INSPECTOR SRI.SIBI TOM AND OTHER POLICE PEOPLE ALLEGING BRIBERY ON 13.2.2017** - **ANNEXURE-17 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT AGAINST SUB INSPECTOR RAMESH AND OTHERS BEFORE THE POLICE COMPLAINT AUTHORITY TRIVANDRUM DURING THE MONTH OF DECEMBER 2015** - **ANNEXURE-18 A TRUE COPY OF THE ORDER IN O.P.NO.22/2016 OF THE POLICE COMPLAINT AUTHORITY DATED 7.4.2016** - **ANNEXURE-19 A TRUE COPY COPY OF THE COMPLAINT CUM PETITION REGISTER MAINTAINED IN MULANTHURUTHI POLICE** - **ANNEXURE-20 A TRUE COPY OF FIR NO.883/2015 OF PUTHENCRUZ POLICE DATED 15.7.2017** - **ANNEXURE-21 TRUE COPY OF FIR NO.1035/2015 OF PUTHENCRUZ POLICE STATION 24.8.2018** - **ANNEXURE-22 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT BEFORE THE POLICE COMPLAINT AUTHORITY AGAINST C.V.RAJAN AND BINU DATED 22.12.2016** - **ANNEXURE-23 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT AGAINST JOMON AND 4OTHERS BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MARADU DATED 12.10/2012** - **ANNEXURE-24 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT AGAINST KAMALAMMA RAJI AND 5OTHERS BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY DATED 26.2.2018** - **ANNEXURE-25 A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MADARU AS C.C.NO.242/2018 DATED 8.8.2017** - **ANNEXURE-26 A TRUE COPY OF THE ORDER IN CRL.M.C. N.5602/2018 BEFORE THE HON'BLE COURT DATED 4.12.2018** - **ANNEXURE-27 A TRUE COPY OF THE JUDGMENT IN W.P(C) NO.2267/2017 OF THE HIGH COURT DATED 30.1.2017** Crl.MC:3779/2019 14 |**ANNEXURE-28**|**A TRUE COPY OF JUDGMENT IN W.P(C) NO.676/2017 OF THE**| |---|---| ||**HIGH COURT DATED 16.1.2017**| |**ANNEXURE-29**|**A TRUE COPY OF THE COMPLAINT FILED BY THE 17TH**| ||**RESPONDENT AGAINST ADV, VINAR BEFORE THE KERALA HIGH**| ||**COURT LEGAL SERVICE AUTHORITY DATED 24.1.2019**| |**ANNEXURE-30**|**A TRUE COPY OF THE EXPLANATION BY ADV. VINAR BEFORE THE**| ||**KERALA HIGH COURT LEGAL SERVICE AUTHORITY DATED 4.2.2019**| |**ANNEXURE-31**|**A TRUE COPY OF CHARGE IN CRIME NO.1325/2015 OF**| ||**PUTHENCURZ POLICE STATION**| |**ANNEXURE-32**|**THE TRUE COPY OF THE CHARGE IN CRIME NO.1321/2015 OF**| ||**PUTHENCRUZ POLICE STATION**| |**ANNEXURE-33**|**A TRUE COPY OF THE FINAL REPORT IN FIR NO.1311/2015 OF**| ||**PUTHENCRUZ POLICE STATION DATED 7.11.2015**| |**ANNEXURE-34**|**A TRUE COPY OF FIR NO.37/2017**| |**ANNEXURE-35**|**A TRUE COPY OF THE REPORT FILED BY THE SUB INSPECTOR**| ||**PANANGAD AGAINST THE 17TH RESPONDENT BEFORE THE RDO**| ||**KOCHI**| |**ANNEXURE-36**|**A TRUE COPY OF THE FIR IN CRIME NO.789/2017 OF ERNAKULAM**| ||**CE3NTRAL POLICE STATION DATED 16.3.2017**| |**ANNEXURE-37**|**A TRUE COPY OF THE STATEMENT/COMPLAINT FILED BY THE 17TH**| ||**RESPONDENT BEFORE THE CENTRAL POLICE STATION DATED**| ||**5.3.2019**| |**ANNEXURE-38**|**A TRUE COPY OF FIR IN CRIME NO.476/2019 OF CENTRAL**| ||**POLICE STATION DATED 5.3.2019**| |**ANNEXURE-39**|**A TRUE COPY OF THE VAKKALATH IN CMA NO.12/2018 ON THE**| ||**FILE OF SUB COURT, PALA DATED 23.6.2018**| |**ANNEXURE-40**|**A TRUE COPY OF THE 'B' DIARY PROCEEDINGS IN CMA**| ||**NO.12/2018 ON THE FILE OF SUB COURT, PALA**| |**ANNEXURE-41**|**A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER**| ||**BEFORE THE INSPECTOR GENERAL OF POLICE, ERNAKULAM DATED**| ||**11.3.2019**| |**ANNEXURE-42**|**A TRUE COPY OF THE COMPLAINT FILED BY ONE MR.P.M VIJAYAN**| ||**BEFORE THE INSPECTOR GENERAL OF POLICE, ERNAKULAM DATED**| ||**2.4.2019**| |**ANNEXURE 43**|**A TRUE COPY A MASS PETITION HAS BEEN FILED BY THE**| ||**ADVOCATES OF ERNAKULAM BAR ASSOCIATION BEFORE THE**| ||**PRESIDENT OF DISTRICT COURT BAR ASSOCIATION ERNAKULAM**| ||**AGAINST THE 17TH RESPONDENT**| Crl.MC:3779/2019 15 ## **RESPONDENTS’ EXHIBITS:-NIL**