Philix George v. Reji J. and The State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV FRIDAY,THE11[TH]DAYOFAUGUST2023/20THSRAVANA,1945 CRL.MCNO.6515OF2023 ``` ``` AGAINSTCCNO.396/2022OFJUDICIALFIRSTCLASSMAGISTRATE COURT,PIRAVOM CRIMENO.1506OF2019OFPIRAVAMPOLICESTATION ``` ## **`PETITIONER/ACCUSED NO.2 :`** ``` PHILIXGEORGE, AGED22YEARS S/OGEORGE,MANGALASSERILHOUSE,KAKKOORP.O., – KOOTHATTUKULAM,ERNAKULAM.,PIN686662 ``` ``` BYADVS. GEEVANT.CHARLES ANTONYTHOMAS ``` ## **`RESPONDENTS/COMPLAINANT/STATE :`** ``` 1REJIE.J., S/OJOSEPH,THAKIDIPUTHANPURAYILHOUSE, PERIYAPPURAMP.O.,ONAKKOORVILLAGE, – ERNAKULAMDISTRICT.,PIN686662 2THESTATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,ERNAKULAM,PIN682031 ``` ``` SRI.TRRANJITH,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 11.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No. 6515 of 2023 2 ## **ORDER** The petitioner herein is the 2nd accused in C.C. No.396/2022 pending on the files of the Judicial Magistrate of First Class, Piravom. In the aforesaid case, he is facing prosecution for having committed offences punishable under Sections 323, 324, 506(ii), 294(b) and 509 read with Section 34 of the IPC. 2. The prosecution allegation is that on 24.10.2019 at about 5.30 p.m, in connection with a Church dispute, a group of persons, which include the petitioner, are alleged to have attacked the informant with a stick and caused injuries. 3. The learned counsel appearing for the petitioner submitted that the petitioner has been falsely implicated in the instant case. He would contend that the petitioner was pursuing his Bachelor’s degree in Bangalore on 24.10.2019, and he was not even present at the scene of the occurrence. In order to substantiate his contention, reliance is placed on Annexure A5 Admit Card and Annexure A6 statement of marks. According to the learned counsel, a counter case has been registered against the informant and others in connection with another incident and the instant crime has been Crl.M.C No. 6515 of 2023 3 registered merely as a counterblast. 4. In response, the learned Public Prosecutor submitted that the contention of the petitioner that he was not in the station at the relevant point of time can be taken up before the learned Magistrate during trial, and this Court will not be justified in relying on the documents produced before this Court to quash the proceedings. It is further submitted that from the records made available before this Court, it is evident that the name of the petitioner herein has been mentioned by the informant and the other witnesses. Finally, it is urged that the offenses disclosed in the FIR make out a cognizable offense, and this court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR. 5. I have considered the submissions advanced and have gone through the records made available before this Court. The statements of witnesses as well of the investigation conducted by the Police, disclose that the Petitioner was also present on 24/10/2019 and he is also alleged to have taken part in assaulting the informant. The main contention of the Petitioner is that he was not in station on the date on which the incident had taken place. This contention is taken based on certain documents, the authenticity Crl.M.C No. 6515 of 2023 4 of which cannot be ascertained by this Court in this petition. The question is whether the documents produced by the defense which cannot be said to be unimpeachable, can be relied upon by this Court at this stage. 6. In **Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd.** , (2009) 11 SCC 529 the Apex Court had occasion to observe that the materials furnished by the defense cannot be looked into while considering a petition under Section 482 of the Code of Criminal Procedure. It was observed as follows in paragraphs 18 and 19 of the judgment. **18.** While entertaining a petition under Section 482 CrPC, the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is a well-settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases. **19.** While considering the facts of the present case, we are of the considered opinion that the present case is not one of those extreme cases where criminal prosecution can be quashed by the Court at the very threshold. A defence case is pleaded but such Crl.M.C No. 6515 of 2023 5 defence is required to be considered at a later stage and not at this stage. The appellants would have ample opportunity to raise all the issues urged in this appeal at an appropriate later stage, where such pleas would be and could be properly analysed and scrutinised. 7. In the case on hand, the documents relied on by the petitioner to persuade this Court to quash the proceedings are not unimpeachable documents, the authenticity of which is admitted even by the prosecution. As held by the Apex Court, those documents cannot be accepted as genuine by this Court and quash the proceedings in the exercise of the powers under Section 482 of the Code. 8. In **R. Kalyani v. Janak C. Mehta and Others** [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in the exercise of powers under Section 482 will be justified in quashing the FIR. In paragraphs Nos. 14 and 15 it was held as follows: 14. However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held : "36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before Crl.M.C No. 6515 of 2023 6 the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage." 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” The same view was taken in **Kurukshetra University v. State of** **Haryana** [1977 (4) SCC 451], and in **Som Mittal V Government of Karnataka** [2008 (3) SCC 574] and in **Tilly Gifford V Michael Floyd Eshwar and Another (** AIR 2017 SC 3823 ). 9. Time and again, it has been emphasized by the Apex Court as well as this Court that the power under Section 482 Cr.P.C. would not Crl.M.C No. 6515 of 2023 7 permit the High Court to go into disputed questions of fact or to appreciate the defense of the accused. The power to interdict a criminal proceeding at the stage of investigation is even rarer. Broadly speaking, a criminal investigation, unless tainted by clear malafides, should not be foreclosed by a Court of Law. After having bestowed my anxious considerations to the submissions and contentions and tested them in the light of the binding and illuminating precedents of the Apex Court, I am of the view that the petitioners have failed to make out a case for quashing the criminal proceedings at the threshold itself. In that view of the matter, I hold that the petitioner has not made out any case for intervention at this stage. If the petitioner deems it appropriate, he may seek discharge at the appropriate stage. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No. 6515 of 2023 8 ## **`APPENDIX OF CRL.MC 6515/2023`** ``` PETITIONERANNEXURES: ``` ``` AnnexureA1CERTIFIEDCOPYOFTHECOMPLAINTDATED 13/01/2022INCRLMP58/2022OFJFCM COURTPIRAVOM AnnexureA2TRUECOPYOFSWORNSTATEMENTDATED 30/04/2022OF1STRESPONDENT/COMPLAINANT AnnexureA3CERTIFIEDCOPYOFTHEPROCEEDINGSINCMP NO.58/2022DATED02/08/2022OFJUDICIAL FIRSTCLASSMAGISTRATECOURT,PIRAVOM AnnexureA4TRUECOPYOFTHEREPORTDATED30/12/2019 SUBMITTEDBYTHESUBINSPECTOR,PIRAVOM POLICESTATION AnnexureA5TRUECOPYOFTHEADMITCARDFOR EXAMINATIONOFTHEPETITIONERHAVING REGISTERNO.18HU6A1032 AnnexureA6TRUECOPYOFTHESTATEMENTOFMARKSDATED 12/02/2020OFTHEPETITIONER AnnexureA7TRUECOPYOFTHEADVOCATECOMMISSION REPORTINIANO.1055/2019INOSNO.31/ 2015OFHON'BLESUBCOURTMUVATTUPUZHA DATED25/10/2019 AnnexureA8TRUECOPYOFTHEFIRNO.1431/2019DATED 24/10/2019OFPIRAVOMPOLICESTATION AnnexureA9TRUECOPYOFTHEFINALREPORTDATED 19/03/2020INCRIMENO.1431/2019OF PIRAVOMPOLICESTATION AnnexureA10TRUECOPYOFTHEFINALREPORTINCRIME NO.1432/2019OFPIRAVOMPOLICESTATION DATED29/02/2020 ```