Rakesh M @ Rakesh Marar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938** **Crl.MC.No. 7483 of 2016** **--------------------------** **CC 52/2015 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,HOSDURG CRIME NO. 222/2014 OF BEKAL POLICE STATION, KASARGOD** **----------------** **PETITIONER(S)/ACCUSED NO.1:** **--------------------------** **RAKESH M @ RAKESH MARAR, AGED 42, S/O.K.V.BALAGADHARA MARAR, GEETHA NIVAS, HOUSE NO.XVIII/81, CHIRAKKAL, KANNUR DISTRICT.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** **RESPONDENT(S): --------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682031.** **BY PUBLIC PROSECUTOR SRI AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **Crl.MC.No. 7483 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **-----------------------** **ANNEXURE 1 TRUE COPY OF THE FINAL REPORT IN CC 52/15 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II HOSDURG.** **ANNEXURE 2 TRUE COPY OF THE COMPLAINT DATED.24-3-12 FILED BY CW1 BEFORE THE STATION HOUSE OFFICER, BAKEL POLICE STATION.** - **ANNEXURE 3 TRUE COPY OF THE SEIZURE MAHAZAR DATED.30-1-14 IN CR 182/12 OF BAKEL POLICE STATION.** - **ANNEXURE 4 TRUE COPY OF THE CURRICULUM VITAE.** - **ANNEXURE 5 TRUE COPY OF THE APPLICATION FORM SUBMITTED BY PETITIONER BEFORE THE BIRALA SUN LIFE INSURANCE CO. LTD.** **ANNEXURE 6 TRUE COPY OF THE RELIEVING LETTER DATED.24-9-2012.** - **ANNEXURE 7 TRUE COPY OF THE ALLEGED FORGED CERTIFICATE OF DIPLOMA IN ELECTRONICS ISSUED BY JOINT CONTROLLER OF TECHNICAL EXAMINATIONS IN FAVOUR OF THE PETITIONER.** - **ANNEXURE 8 TRUE COPY OF THE 161 STATEMENT OF CW6 BINOY K.G.** - **ANNEXURE 9 TRUE COPY OF THE 161 STATEMENT OF CW7 PRAVEEN KUMAR.** - **ANNEXURE 10 TRUE COPY OF THE 161 STATEMENT CW10 SANDHYA K.I.** **RESPONDENT(S)' ANNEXURES NIL -----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.7483 of 2016 ----------------------------------------Dated this the 3[rd] day of November, 2016 ## O R D E R - 1.This petition under section 482 of the Code of Criminal Procedure is filed by the 1[st] accused in C.C.No.52 of 2015 on the files of the Judicial Magistrate of 1[st] Class-II, Hosdurg. He faces allegations of having committed offences punishable under Sections 468, 471 and 420 of the IPC. - 2.The prosecution allegation is that the petitioner along with the 2[nd] accused forged and fabricated a Diploma certificate of CW6, and fraudulently replaced the name of CW 6 with that of the petitioner, and submitted the same before the Birla Sunlife Insurance Company to secure job as Branch Manager. - 3.Heard the learned Senior Counsel for the petitioner as well as the learned Public Prosecutor. - 4.Various contentions are advanced by the learned Senior Crl.M.C.7483/2016 2 Counsel to bring home the point that the prosecution cannot be sustained. Profuse reliance is placed on a catena of judgments of this Court wherein the powers of this Court under section 482 of the Code is delineated and referring to the records produced along with the final report, it is contended that this is a fit case in which the proceedings are to be brought to a premature termination. - 5.The learned Public Prosecutor on the other hand vehemently opposed the submissions and reminded the Court of the scope and ambit of powers of this Court under Section 482 of the Code and contended that at this stage only prima facie case is to be seen in the light of various decision of the Apex Court. According to the learned public prosecutor the instant petition filed under Section 482 of the Code is not liable to be entertained as the petitioner has an inviolable right to raise all his contentions before the Court below at the time of framing of charge and if the learned Magistrate considers the Crl.M.C.7483/2016 3 charge to be groundless, he is empowered to discharge the accused. 6. I have carefully considered the rival contentions. There can be no dispute with the proposition of law enunciated in the judgments relied on by the learned Counsel wherein it has been held that the inherent powers conferred upon the High Court under Section 482 of the Code are wide enough to encompass almost all situations in order to prevent the abuse of process of any court or to otherwise secure the ends of justice. - 7.The question, however, is when and under what situation, the High Court should step in and pass appropriate orders in exercise of its jurisdiction under Section 482 of the Code in a criminal trial. - 8.In this context it will be relevant to remind oneself of the principles laid down by the Apex Court in the matter of exercise of powers under Section 482 of the Code. It has been held that while exercising jurisdiction under Section Crl.M.C.7483/2016 4 482 of the Code, this Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation could be sustained. That is the function of the trial Court. Section 482 of the Code is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without a fullfledged enquiry. Though High Court may exercise its power to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power has to be exercised sparingly and with circumspection. The interference must be on sound principles and the inherent power cannot be exercised to stifle a legitimate prosecution. It is also settled that, if on taking the allegations and the complaint as they were, without adding or subtracting anything, no offence was made out, then the High Court would be justified in quashing the proceedings in the exercise of its power under S.482 Crl.M.C.7483/2016 5 CrPC. ( See **MCD v. Ram Kishan Rohtagi** , (1983 (1) SCC - 1) ; **Soundaram N V P.K. Ponnuraj and Another** ( 2014 (10) SCC 616 ). - 9.After having heard the rival submissions and after perusing the prosecution records, it does not appear to me that the petitioner has made out a case for quashing the proceedings under Section 482 of the Code. I refrain from passing opinion on the merits of the allegations at this stage lest it affect the case of either the prosecution or the accused. - 10.In the case in hand, it is submitted that the charge sheet has been filed before the Court below but the stage under section 239 of the Code has not reached. If that be the case the petitioner can raise all his contentions before the learned Magistrate and if the court below considers the Charge to be groundless, he is empowered to discharge the accused after recording his reasons. When alternate and comprehensive remedies are available for the Crl.M.C.7483/2016 6 petitioner under the Code, this Court will not be justified in sifting and weighing the materials in a petition filed under Section 482 of the Code. In the result, this petition is disposed of with liberty to the petitioner to seek for discharge under Section 239 of the Code of Criminal Procedure. Sd/RAJA VIJAYARAGHAVAN.V. JUDGE vps