Prajith P v. State of Kerala and Smt. Sheena

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** **Crl.MC.No.1990 OF 2019(G)** **AGAINST THE ORDER/JUDGMENT IN CC 2014/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MALAPPURAM CRIME NO.1875/2015 OF Malappuram Police Station , Malappuram** ## **PETITIONER/S:** **PRAJITH.P, AGED 34 YEARS S/O.BALASUBRAMANIAN, PADAVETTIL HOUSE, THRIKKALANGODE.P.O., KARIKKAD, MANJERI** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 SHEENA, AGED 35 YEARS W/O.PRABHAKARAN, UMMINIKUNNATH HOUSE, PADINJARUMURI, MALAPPURAM-676505 R2 BY ADV. SRI.V.M.KRISHNAKUMAR** ## **OTHER PRESENT:** ## **SMT.PRIYA SHANAVAS,PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 1990 of 2019 ================== Dated this the 19[th] day of August, 2019 ## **O R D E R** The prayer in this Criminal Miscellaneous Case filed under Sec. 482 of the Code of Criminal Procedure is as follows: _“Call for the records in CC 2104/2015 of the JFCM, Malappuram and quash the same and all further proceedings pursuant thereto.”_ 2. Heard Sri.K.A.Salil Narayanan, learned counsel appearing for the petitioner accused, Smt.Priya Shanavas, learned Prosecutor appearing for R-1 State of Kerala and Sri.V.M.Krishnakumar, appearing for R-2 defacto complainant. 3. The case projected by the petitioner herein is as follows: That the 2[nd] respondent (lady defacto complainant) in this case is a matriculate and is having three children and that her husband is conducting a work shop and that she would allege that, on 16.11.2015 at about 11 a.m. the petitioner herein, who is a friend of her sister's husband, had gone to her house and initially attempted to take her photograph of hers and subsequently, attempted to take a _selfie_ by putting his hand over her shoulders and when she objected to the same, he left the place and that she apprehended that the petitioner may misuse the said photograph for some extraneous purposes and Crl.M.C.1990/19 - : 3 :- hence she has given Anx.A-1/Anx. A-6 FI statement before the Police Station concerned, which has led to the registration of Anx. A-2 FIR in Crime No. 1875/2015 of Malappuram Police Station, on the basis of the said FI statement given by the 2[nd] respondent lady defacto complainant on 20.11.2015 in respect of the alleged incidents which have happened on 16.11.2015. The petitioner herein has been arrayed as the sole accused in Anx.A-2 crime for offences punishable under Sec.354 of the I.P.C. The Police after investigation has filed the impugned Anx. A-3 final report/charge sheet in the said Crime No. 1875/2015 of the Malappuram Police Station, which has now led to the institution of Calendar Case, C.C.No. 2104/2105 on the file of the Judicial First Class Magistrate's Court, Malappuram. Anx. A-4 is the witness list in the abovesaid case. By Anx. A5 the court below has framed charges on 21.12.2016 in the above case, which reads as follows: “ 16/11/2015 **ത�യത� ര�വ�ല�** 11.00 **മണ�ക� ക�ട��ങ�ട� അ�ശ� പട�ഞ�റ�മ�റ� അങ�ട�യ�ൽ** 500 **ന�ന�� വടകക�ട�ള കവളപ�റ കറ�ഡ�ൽ മ�റർ വടക� മ�റ�യ�� ക�ട��ങ�ട� പഞ�യത� വ�ർഡ** 2- **ൽ** 67 1 - **എന ആ� സ�ക�യ�ലട വ�ട�ക�ക� പപത� കടന� വന� ആവ��ത�കര�യ�ലട ക.�കട� എട�ക�കയ�� മ�കസ�യ�ൽ പ�ട�ച� മ�നഹ�ന� വര�ത�കയ��** 354 **ല2യതത�ൽ പപത� ഇന6ൻ ശ�ക� ന�യമ�** ” **വക�പ�** . **പപക�ര� ശ�ക�ർഹമ�യ ക�റ� ല2യത�ര�ക�ന�** Crl.M.C.1990/19 - : 4 :- 4. The petitioner has raised contention that the impugned criminal proceedings is an abuse of the process of court and in that regard, he has urged that there are substantial contradictions in the very case set up by the 2[nd] respondent lady defacto complainant in her subsequent stand in Anx. A-3 final report compared to her initial stand in Anx. A-1/A-6 FIS. Further, the petitioner has also averred that the impugned criminal proceedings is only on account of the mala fide animosity entertained by the 2[nd] respondent against the petitioner. In that regard, the petitioner would point out that he is working abroad and has his own business establishments there and that the houses of the petitioner and that of the 2[nd] respondent are nearby, within hardly a distance of 500 mtrs. The 2[nd] respondent's sister is married to the immediate neighbour of the petitioner, who happens to be the petitioner's close friend and the husband of the 2[nd] respondent is running an automobile workshop. On account of the petitioner's friendship with the brother-in-law of the 2[nd] respondent, he also became quite friendly with the husband of the 2[nd] respondent. On account of certain ailments, the workshop business of the 2[nd] respondent's husband was facing financial difficulties and accordingly due to the persuasion of the 2[nd] respondent's brother in law, the Crl.M.C.1990/19 - : 5 :- petitioner had advanced a total amount of Rs.1,75,000/- in two instalments to the 2[nd] respondent's husband in the year 2013-14. The said amount was given to the 2[nd] respondent's husband by the petitioner's mother as per his instructions and also by the petitioner personally. It was promised by the 2[nd] respondent's husband that the said amounts would be returned to the petitioner within 8-10 months. Thereafter, since no action was forthcoming from the 2[nd] respondent's husband in returning the money, the petitioner was constrained to contact him on various occasions to repay the amount without any further delay and that it is in this context, that the petitioner was constrained to go to the 2[nd] respondent's husband's workshop on 16.11.2015 and at that time the workshop staff informed the petitioner that the 2[nd] respondent's husband is in his residence and then he had gone to the residence to actually meet her husband for getting back his advanced amount. Though the 2[nd] respondent's husband was there, she informed the petitioner that her husband is not then there. When the petitioner insisted for return of the money, it resulted in verbal alternations between the petitioner and the 2[nd] respondent and the petitioner had to return back without meeting the 2[nd] respondent's husband on 16.11.2015 and on the next day, he had to Crl.M.C.1990/19 - : 6 :- return back to his place of work in Saudi Arabia. That before leaving, the petitioner had firmly informed the 2[nd] respondent that he will be constrained to file case including a criminal case for getting back the amount advanced, as according to the petitioner, it is nothing short of cheating and misappropriation, etc. It is 4 days after 16.11.2015 that the 2[nd] respondent has given Anx. A-1/Anx. A-6 FIS on 20.11.2015 making the abovesaid allegations. It is in the light of these aspects that the petitioner has filed the instant Crl.M.C. with the aforementioned prayers. 5. The petitioner has raised a specific contention that there are manifest and substantial contradictions in the very case set up the 2[nd] respondent defacto complainant in Anx. A-1/ Anx. A-6 FIS dated 20.11.2015, compared to her subsequent case in Anx. A3 final report/charge sheet. The petitioner would allege that it is only to retaliate against the petitioner and to wriggle out of the financial liabilities, the 2[nd] respondent has caused to file the abovesaid false allegations before the Police as per Anx. 1/ Anx. A-6 which led to the present impugned criminal proceedings. 6. A reading of the impugned Anx.A-1/ Anx. A-6 FIS dated 20.11.2015 would show that according to the 2[nd] respondent, the Crl.M.C.1990/19 - : 7 :- petitioner had come to her residence on 16.11.2015 at about 11 a.m. and he had spoken about the family news about the 2[nd] respondent's sister, who is the petitioner's immediate neighbour and then he had asked her whether he can take her photo in his mobile phone and then the 2[nd] respondent insisted that he should not take any such photo and then the petitioner had put his hand over her shoulder and asked her whether he can take her selfie and then he had tried to take a selfie photograph and that she does not know whether he had in fact taken selfie photograph and that he had immediately wriggled out of his hand and made noises, whereupon the petitioner had gone away from her house and that she apprehends that her selfie photograph if taken by the petitioner could be misused by him and that the act of the petitioner in putting his hand over her shoulders has lowered her reputation, etc. The crucial parts of Anx. A-1/ Anx. A- 6 dated 20.11.2015 are as follows: “ .......... **കശഷ� അന�യത�യ�ലട ക�ട��ബക�ര6ങൾ സ�സ�ര�ക�ന ത�ന�ടയ�ൽ എനലറ ഒര� ക.�കട� അയ�ള�ലട ലമ�ബബൽ ക.�ണ�ൽ എട�കകട എന� ക2�ദ�ച�** . **ഞ�ൻ കവണ എന� പറയ�നത** _**.**_ **കകൾക�ലത അയ�ൾ ക.�കട� എട�ത� കശഷ� എൻലറ കത�ള�ൽ ബകയ�ട� ഒര� ലസൽ.� എട�ക�ൻ ക2�ദ�ച� സമത�ക�ത�ര�ന എലന കത�ള�ൽ ക�ട� കയ�ട� ക.�കട� എട�ക�ൻ പശമ�ച�** . **ക.�കട� എട�കത� എലനന�കറ�യ��D** . **അത�ൽ ഞ�ൻ** . **ക�തറ� മ�റ� ബഹള� ലവക�� എന� പറഞത�ൽ പപജ�ത ഇറങ� കപ�യ�** .” 7. It appears that the 2[nd] respondent has substantially varied Crl.M.C.1990/19 - : 8 :- and improved the abovesaid version and has made more serious allegations against the petitioner in her subsequent Sec. 161 Cr.P.C. given by her to the Police in the course of the investigation and the said additional statement is one of the main allegations raised in Anx. A-3 final report/charge sheet. The relevant parts of the contents in the said additional version given by the 2[nd] respondent lady defacto complainant as referred to in internal page No.3 of Anx. A-3 final report/charge sheet given on page 15 of the paper book of this Crl.M.C. is as follows: "......... പ�ത� കടന� വന� ആവല�ത�ക�ര�യ�ടട ഫ��ഫ�� എട�ക�കയ�� ഇത�ട� എത�ർത ആവല�ത�കര�യ�ടട അ��മത� ക�ട�ടത ട�യ�ള ടട മ�ക"�യ�ല�ടട കയ��� എത�ർപ� വകടവക�ടത ട�യ�ള ടട മ�റ�ൽ ��ട�ച � വ(ണ�� ബലമ�യ� ഫത�ള�ൽ കയ��� ഫ��ഫ�� എട�ക�ൻ പ,മ�ക�കയ�� ട-യതത�ൽ ആവല�ത�ക�ര�ക� മ�� ഹ��� "�ഭവ�ക�ൻ ഇടയ�യ� എന�� മറ � ടവള� വ�യ�ര�യകയ�ൽ പ�ത� ഫമൽ പ�ക�ര� വക�പ� ” . ,�ക�ർഹമ�യ ക�റ� ട-യത�ര�ക�ന� 8. So the varied and improvised version given by the 2[nd] respondent lady defacto complainant to the Police in the course of the investigation, which is now one of the main allegations in Anx. A-3 final report/charge sheet, is that the petitioner had not only initially taken her photograph of the 2[nd] respondent and that she had objected to that and thereupon the petitioner without giving due regard to her Crl.M.C.1990/19 - : 9 :- objections, had introduced his hand through her maxi/nighty and pressed her breast and had forcibly put his hands over her shoulders and tried to take a photograph, etc. The said subsequently varied and improvised version does not find any place in Anx. A-1 / Anx. A-6 FIS given on 20.11.2015. The petitioner has also a contention that the very registration of the crime and lodging of the FIS is vitiated by long and unexplained delay, inasmuch as the alleged incident is said to have taken place on 16.11.2015, whereas Anx. A-1 FIS and FIR are lodged as late as on 20.11.2015 at 12.53 p.m., etc. after a delay of 4 long days. 9. A reading of Anx. A-1/ A-6 FIS dated 20.11.2015 would show that the initial allegations raised by the lady defacto complainant about the incidents, which are said to have happened on 16.11.2015, appear to be quite mild compared to the allegations duly made by her subsequently, as reflected in Anx. A-3 (3) final report/charge sheet. In the initial allegations made as per Anx.A-1/A6 FIS, her case is only that the petitioner had initially taken her photograph without her consent and later he came nearer and placed his hand over her shoulders and then attempted to take her photographs. Nowhere, has the 2[nd] respondent even remotely whispered anywhere in Anx. A-1/A-6 FIS that the petitioner had Crl.M.C.1990/19 - : 10 :- inserted his hand inside her maxi/ nighty and then pressed her breast and it is thereafter that he had placed his hands over her shoulders in his attempt to take a selfie photograph. The said variance is a drastic improvisation and addition to the initial allegations and has to be viewed very seriously. The incidents narrated in Anx.A-1 and Anx. A- 3 are one and the same. If, as a matter of fact, the incidents have actually happened in the serious manner as alleged in Anx. A-3 (3) final report/charge sheet, then the ordinarily any prudent complainant would have definitely made those allegations about the accused inserting his hand into her maxi and pressing her breast, etc. Whereas those allegations are fully and conspicuously absent in Anx. A-1 FIS. This has to be evaluated, more so particularly in the light of the long and unexplained delay of 4 long days as between the date of the alleged incidents (16.11.2015 at 11 a.m.) and the lodging and registration of the FIS and FIR on 20.11.2015 at 12.53 p.m. The abovesaid drastic improvisation made in Anx.A-3 would raise serious questions regarding the very credibility and believability of the version of the defacto complainant. Nowhere is it even remotely whispered in Anx. A-1 FIS about the alleged serious incidents, which are narrated for the first time much later in Anx. A-3 (3). Moreover, Crl.M.C.1990/19 - : 11 :- there is a delay of about 4 days in the very registration of the instant FIS and FIR and in a case like this, the delay, as it is unexplained, is quite serious and cannot be brushed aside. 10. Taking into account these cumulative aspects, this Court is constrained to take the view that the incidents as narrated by the 2[nd] respondent may not have happened in the manner alleged by her and it would have happened in a manner which is quite distinct and different from what is narrated by her and that the allegations have been made for extraneous reasons, which are known only to the 2[nd] respondent defacto complainant. That apart, the petitioner has also raised serious contentions that the abovesaid allegations are falsely foisted by her only on account of the 2[nd] respondent's husband's attempt to wriggle out of certain financial liabilities, which he owes to the petitioner, etc. Even without going into those aspects, this Court has constrained to take the view for the aforementioned reasons given earlier herein above, that the impugned criminal proceedings appear to be an abuse of the process of court and would deserve interdiction. 11. It has been held by the Apex Court in the case _**Shakson**_ _**Belthissor v. State of Kerala and another**_ reported in (2009) Crl.M.C.1990/19 - : 12 :- 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 be fittingly exercised to quash such impugned criminal proceedings. In the case _**State of Orissa through Kumar Raghvendra Singh and 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 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. Taking into consideration all these facts and circumstances of this case and taking into account the legal principles well settled by the Apex Court in the matter of quashment of criminal proceedings, this Court is of the Crl.M.C.1990/19 - : 13 :- considered opinion that discretion conferred on this Court under Sec.482 Cr.P.C could be exercised in the facts of this case. 12. In the light of the abovesaid aspects, it is ordered that the impugned criminal proceedings at Anx. 3 final report/charge sheet filed in Crime No. 1875/2015 of Malappuram Police Station, which has led to the pendency of Calendar Case, C.C.No. 2104/2015 on the file of the Judicial First Class Magistrate's Court, Malappuram, as well as Anx.A5 proceedings of the said court and all further proceedings taken in pursuance thereof will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.1990/19 - : 14 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT GIVEN BY THE SECOND RESPONDENT. ANNEXURE A2 CERTIFIED COPY OF THE FIRST INFORMATION REPORT BASED ON ANNEXURE A1.** **ANNEXURE A3 CERTIFIED COPY OF THE FINAL REPORT IN CRIME 1875/2015 OF THE MALAPPURAM POLICE STATION. ANNEXURE A4 WITNESS LIST IN CRIME 1875/2015 OF THE MALAPPURAM POLICE STATION. ANNEXURE A5 COPY OF THE CHARGE FRAMED BY THE JFCM, MALAPPURAM IN CC.2104/2015 ANNEXURE P6 TYPED COPY OF ANNEXURE A1 ANNEXURE P7 TYPED COPY OF ANNEXURE A5**