P.P. Surendran and Ribin Lal v. Buhaskarakurup and State of Kerala

Crl.M.C.No.1154/2019 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943_ _CRL.MC NO. 1154 OF 2019_ _CRIME NO.607/2016 OF Kakkur Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT IN CC 766/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,KOZHIKODE_ ## _PETITIONERS/ACCUSED 1 AND 2:_ _1 P.P.SURENDRAN, AGED 48 YEARS, S/O.RAMAN, RESIDING AT PUTHUKKUDY PARAMBATH, RAMANILAYAM, PAVANDOOR, KOZHIKODE. 2 RIBIN LAL, AGED 23 YEARS, S/O.SURENDRAN, RESIDING AT PUTHUKKUDY PARAMBATH, RAMANILAYAM, PAVANDOOR, KOZHIKODE. BY ADVS. V.V.SURENDRAN SRI.P.A.HARISH_ ## _RESPONDENTS/COMPLAINANT & STATE:_ - _1 BUHASKARAKURUP, S/O.RAMAN NAIR, RESIDING AT PATTYATH HOUSE, PAVANDOOR, NANMINDA, KOZHIKODE 673 613._ _2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. SRI.A.RANJITH NARAYANAN SMT.A.SIMI_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON_ _08.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.1154/2019 2 ## **O R D E R** Petitioners herein are the accused in C.C.No.766 of 2017 on the file of the Judicial First Class Magistrate Court-III, Kozhikode. The aforesaid case was registered on the basis of Annexure-A1 private complaint submitted by the 1[st] respondent herein alleging offences under Section 341, 323 and 324 read with Section 34 IPC. 2. Facts leading to the aforesaid case is as follows: The petitioners herein and the 1[st] respondent are neighbours. There is a civil dispute between the parties regarding the right of a pathway lying in front of the properties of the parties. In connection with the aforesaid dispute, the Revenue Divisional Officer concerned has passed an order directing the petitioners herein to construct a drainage through the pathway in order to prevent water logging in the pathway. The 1[st] petitioner has filed W.P.(C).No.27282 of 2016 challenging the aforesaid order and the same is stayed by this court. W.P(C).No.27595 of 2016 has been submitted by the 1[st] Crl.M.C.No.1154/2019 3 respondent herein for implementing the aforesaid order. Both the above writ petitions are now pending consideration before this Court. 3. In the mean while, the 1[st] respondent herein submitted a complaint before the Kakkoor police station alleging that on 18.11.2016 at 4.45 pm, when the 1[st] respondent herein was walking through the said pathway, the petitioners herein wrongfully restrained him by threatening him and assaulted him with a stick. On the basis of the same Annexure-A5 FIR was registered by the police as Crime No.607 of 2016 and after completing the investigation the final report has been submitted referring it as a false complaint. Subsequently, Annexure-A1 protest complaint has submitted before the Judicial First Class Magistrate Court-III, and the learned Magistrate has taken cognizance thereon as C.C.No.766 of 2017. This Crl.M.C is filed praying for quashing the aforesaid procedure. 4. Heard Sri.V.V.Surendran, learned counsel for the petitioners, Sri.Prajith Narayanan, learned counsel for the 1st respondent and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. Crl.M.C.No.1154/2019 4 5. The contention of the learned counsel for the petitioners is that the dispute between the parties are basically civil in nature and the allegations raised in the complaint are only for the purpose of strengthening the said civil remedies. No such incident as alleged has been occurred. It was also pointed out by the learned counsel for the petitioners by placing reliance upon Annexure-A6 wound certificate that even though the reason for injuries is shown as assault, name of the persons are not seen mentioned therein. Apart from the above, the injuries mentioned are minor aberrations on the back of the 1[st] respondent, and there were no visible injuries. It was also pointed out that no specific date for the incident is also mentioned in Annexure-A1 complaint. On the other hand, the learned counsel appearing for the 1[st] respondent would contend that the contentions that are raised by the petitioners herein are factual contentions which can only be considered during the course of the trial. The learned counsel for the petitioners submits that even though no specific date is mentioned in Annexure-A1 complaint, the FIS contains the date of assault as 18.11.2016, and therefore, much emphasis need not be given to the said omission in the complaint. Crl.M.C.No.1154/2019 5 6. The question that arises is whether the petitioner successfully made out the case for invoking powers of this Court under Section 482 Cr.P.C. When I examine the allegations contained in Annexure-A1 complaint, it can be seen that the dispute is in relation to an assault alleged to have been committed by the petitioners herein. It is alleged that they assaulted the 1[st] respondent with a stick. With regard to the 2[nd] petitioner, the allegation is that, when the 1[st] respondent had fallen down, he kicked him. However, when I consider the averments contained in the First Information Statement, which forms part of the Annexure-A5 FIR, it can be seen that there is no allegation as against the 2[nd] petitioner herein. It is also a fact that the police have conducted an investigation and filed a final report concluding that the complaint is false. In the private complaint submitted as Annexure-A1, apart from merely stating that no proper investigation has been conducted, no specific details of the lapse alleged to have been committed by the police during the course of investigation are seen mentioned. It is also a relevant aspect in this regard that, civil disputes are pending between the parties in connection with a pathway. In **State of Haryana and** Crl.M.C.No.1154/2019 6 **Ors. v. Ch.Bhajan Lal and Ors. [1992 AIR 604],** the Honourable Supreme Court has issued guidelines for invoking powers under Section 482 Cr.P.C. Out of such guidelines, serial No.7 is relevant in this case, which reads as follows: 7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 7. Considering the facts and circumstances of the case, I am of the view that, this is a case which falls under the aforesaid guidelines, as it is evident from the records that the complaint itself is filed to strengthen the civil remedies. The attempt of the 1[st] respondent to add the flavour of a criminal case in respect of a civil dispute is clearly evident from the facts of the case. The fact that no serious injuries were sustained by the 1[st] respondent herein and the vagueness in the averments in the complaint are also a clear indication of the aforesaid aspect. The final report submitted by the police after investigation, which was referred as a false complaint, is another aspect which fortifies the same. In such circumstances, I am of the view that the proceedings Crl.M.C.No.1154/2019 7 pursuant to Anneuxre-A is an abuse of process of court, and accordingly, I find this as a fit case in which the powers of this Court under Section 482 Cr.P.C can be invoked. Accordingly, this Crl.M.C. is allowed and all further proceedings pursuant to C.C.No.766 of 2017 on the file of the Judicial First Class Magistrate Court-III, Kozhikode are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/9.3.22 Crl.M.C.No.1154/2019 8 ## _APPENDIX OF CRL.MC 1154/2019_ _PETITIONER ANNEXURES_ - _ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT AGAINST THE PETITIONERS BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE._ - _ANNEXURE A2 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) NO. 14113/2013 DATED 5-6-2014_ - _ANNEXURE A3 CERTIFIED COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) NO. 32320/14 DATED 8-10-2015_ - _ANNEXURE A4 CERTIFIED COPY OF THE COMPLAINT OF THE 1ST RESPONDENT TO THE KAKKOOR POLICE STATION_ - _ANNEXURE A5 CERTIFIED COPY OF THE FI STATEMENT AND REPORT._ - _ANNEXURE A6 CERTIFIED COPY OF THE WOUND CERTIFICATE._