Pramod C. Ag & Sathyanesan K v. State of Kerala

``` CRL.MC NO. 4585 OF 2021 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ``` CRL.MC NO. 4585 OF 2021 ``` ``` CRIME NO.6/2016 OF VACB, KOZHIKODE, Kozhikode ``` ``` IN CC NO.3 OF 2019 OF ENQUIRY COMR.& SPECIAL JUDGE,KOZHIKODE. PETITIONERS: ``` - **`1 PRAMOD.C AGED 53 YEARS S/O GOPALAN NAIR, KUPPANGAL HOUSE, PILASSERY P.O., KUNNAMANGALAM, KOZHIKODE DISTRICT`** - **`2 SATHYANESAN K, AGED 53 YEARS`** - **`S/O NARAYANAN NAIR, DREAMS, KANHIRAPPURATH HOUSE, MANASSERY P.O., KOZHIKODE DISTRICT BY ADVS. I.V.PRAMOD K.V.SASIDHARAN`** ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 032. ``` ``` BY SRI.RAJESH.A-SPL. PUBLIC PROSECUTOR (VIGILANCE) SMT.REKHA-SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4585 OF 2021 ``` ``` 2 ``` K.BABU, J ------------------------------------------------- Crl.M.C.No.4585 of 2021 -------------------------------------------------- Dated this the 19[th] day of March, 2024 ## ORDER The petitioners who are accused Nos.1 and 2 in C.C.No.3/2019 on the file of the Enquiry Commissioner and Special Judge, Kozhikode seek to quash the FIR, final report and all further proceedings against them. They are alleged to have committed the offences punishable under Sections 7, 13(1)(d)(ii) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120(B) of IPC. 2. The prosecution case is that the petitioners who were working as police officers in the traffic police unit at Kozhikode on 15.6.2016 entered into a criminal conspiracy, abused their official position and demanded Rs.2,000/- as a bribe from Sri.Sreemahesh (CW3) for dropping a petty case. 3. Heard the learned counsel for the petitioners and the learned Senior Public Prosecutor. ``` CRL.MC NO. 4585 OF 2021 ``` ``` 3 ``` 4. The learned counsel for the petitioners submitted that the prosecution failed to prima facie establish the offences alleged against the petitioners as there is no recovery of the money allegedly received as a bribe. It is submitted that the oral evidence of charge witness No.3 being the solitary evidence is not credible to attract the offences alleged. 5. Petitioner Nos.1 and 2 were working as Assistant Sub Inspector and Civil Police Officer respectively in the City Traffic Police, Kozhikode. On 15.6.2016, they found a motorbike parked on the road violating traffic regulations. They waited for the driver to come. As nobody turned up, the petitioners locked the front wheel of the motorbike, after affixing a sticker ‘Wheels Clamped. Don’t Start. City Traffic, Kozhikode”. 6. The rider of the motorbike later approached the petitioners. The petitioners informed him that the number plate fixed on the motorcycle was not in a proper form. The petitioners then directed the charge witness No.3 to remit a fine of Rs.2,000/- at Mananchira Police Station. 7. As per the instructions of the petitioners and to avoid the vehicle to remain in custody, the charge witness took a sum of ``` CRL.MC NO. 4585 OF 2021 ``` ``` 4 ``` Rs.1,500/- from the nearby ATM counter and handed over Rs.2000/- to the petitioners. The petitioners thereafter released the vehicle. 8. The complainant alleges that the petitioners did not give the receipt for the amount collected. So he filed a complaint before the City Police Commissioner, Kozhikode. Based on this, the Vigilance AntiCorruption Bureau, Kozhikode registered FIR No.6/2016. The VACB conducted an investigation and submitted a final report alleging the offences mentioned above. 9. The VACB mainly relied on the statements given by the complainant and the pillion rider. Annexure A4 is the statement given by the complainant wherein he specifically alleges the demand and receipt of bribe by the petitioners. The statement of the pillion rider (Annexure A7), corroborates the statement given by the complainant. The complainant and the pillion rider gave statement before the Judicial Magistrate under Section 164 of Cr.P.C. Those statements are made available and marked as Annexures A10 and A11. The complainant and the pillion rider reiterated the allegations in the statements given under Section 164 of Cr.P.C also. In the investigation, the VACB found that the petitioners have not made any entries in their notebook showing ``` CRL.MC NO. 4585 OF 2021 ``` ``` 5 ``` detection of the offence. The contention of the learned counsel for the petitioners that in the absence of the recovery of the notes allegedly given as bribe is a ground to brush aside the case of the prosecution cannot be accepted as the prosecution could prima facie establish the demand and acceptance of bribe through the statements given by the complainant and the pillion rider. Their evidence is corroborated by Annexure A1 complaint. 10. It is settled by a long course of decisions of the Apex Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations {Vide: State of West Bengal v. Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370]}. 11. In State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651], the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come ``` CRL.MC NO. 4585 OF 2021 ``` ``` 6 ``` to the conclusion one way or the other. In State of U.P v. O.P.Sharma [(1996) 7 SCC 705] a Three Judge Bench of the Apex Court observed that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another Three Judge Bench of the Apex Court in Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397], wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex ``` CRL.MC NO. 4585 OF 2021 ``` ``` 7 ``` Court in Mahendra K.C. v. State of Karnataka and Ors. (AIR 2021 SC 5711). 12. While dealing with the power under Section 482 Cr.P.C to quash the criminal proceedings the Apex Court in M/s.Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and others (AIR 2021 SC 1918) concluded thus in paragraph 23 of the judgment: 23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India, our final conclusions are as under: ## (i) xxx xxx xxx ## xxx xxx xxx (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be ``` CRL.MC NO. 4585 OF 2021 ``` ``` 8 ``` investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) xxx xxx xxx (xiv) xxx xxx xxx (xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;” 13. In the present case, the petitioners failed to convince this Court that the allegations levelled against them in the prosecution records made available do not disclose the ingredients of the offences alleged. The correctness or otherwise of the allegations levelled in Annexure A2 FIR is a matter to be tested during the course of the trial. It is made clear that this Court has not made any observation on the merits or otherwise of the allegations levelled by the prosecution. The Crl.M.C lacks merits and it stands dismissed. 14. The learned counsel for the petitioners further submitted that ``` CRL.MC NO. 4585 OF 2021 ``` ``` 9 ``` a direction be given to the Trial Court to complete the trial and dispose of the case in a time bound manner. Therefore, the Trial Court is directed to complete the trial and dispose of the matter within six months from the date of production of the certified copy of this order. Sd/- K.BABU JUDGE ab ``` CRL.MC NO. 4585 OF 2021 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 4585/2021`** |**`PETITIONER ANNEXURES`**|| |---|---| |**`Annexure A1`**|**`A TRUE COPY OF THE COMPLAINT DATED NIL`**| ||**`PREFERRED BY THE DEFACTO COMPLAINT BEFORE`**| ||**`THE CITY POLICE COMMISSIONER , KOZHIKODE`**| |**`Annexure A2`**|**`A CERTIFIED COPY OF THE FIR IN VIGILANCE`**| ||**`CRIME NO 6/2016 DATED 13.7.2016 OF THE`**| ||**`HON'BLE COURT OF ENQUIRY COMMISSIONER AND`**| ||**`SPECIAL JUDGE, KOZHIKODE`**| |**`Annexure A3`**|**`A CERTIFIED COPY OF THE FINAL REPORT IN`**| ||**`V.C NO 6/2016 OF VACB, KOZHIKODE`**| |**`Annexure A4`**|**`A TRUE COPY OF THE STATEMENT OF THE`**| ||**`DEFACTO COMPLAINANT DATED 21.7.2014`**| |**`Annexure A5`**|**`A TRUE COPY OF THE STATEMENT OF THE`**| ||**`DEFACTO COMPLAINANT DATED 6.9.2016`**| |**`Annexure A6`**|**`A TRUE COPY OF THE STATEMENT OF THE`**| ||**`DEFACTO COMPLAINANT DATED 28.12.2016`**| |**`Annexure A7`**|**`A TRUE COPY OF THE STATEMENT OF MR.`**| ||**`KRISHNAKUMAR DATED 21.7.2016`**| |**`Annexure A8`**|**`A TRUE COPY OF THE STATEMENT OF`**| ||**`KRISHNAKUMAR DATED 6.9.2016`**| |**`Annexure A9`**|**`A TRUE COPY OF THE STATEMENT OF`**| ||**`KRISHNAKUMAR DATED 28.12.2016`**| |**`Annexure A10`**|**`A TRUE COPY OF THE STATEMENT UNDER`**| ||**`SECTION 164 OF CRIMINAL PROCEDURE CODE OF`**| ||**`DEFACTO COMPLAINANT DATED 10.1.2017`**| |**`Annexure A11`**|**`A TRUE COPY OF THE STATEMENT UNDER`**| ||**`SECTION 164 OF CRIMINAL PROCEDURE CODE OF`**| ||**`KRISHNAKUAMR DATED 10.1.2017`**| RESPONDENTS ANNEXURES: NIL