Ravi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **Crl.MC.No. 2087 of 2019** **AGAINST THE PROCEEDINGS IN CC NO.532/2004 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEYYATTINKARA** **CRIME NO.264/1997 OF PARASSALA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/4TH ACCUSED:** **RAVI, AGED 66 YEARS, S/O.CHELLAPPAN NADAR, ATHININNA VEEDU, KADAVATTARAM, PIRYUMMOODDU, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADV. SRI.S.NIKHIL SANKAR** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE DEPUTY SUPERINTENDENT OF POLICE, CBCID, THIRUVANANTHAPURAM-695001.** **BY SRI.SURESH BABU THOMAS-SR.PP FOR ADGP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:2087/2019 2 ## **ORDER** The petitioner herein is the 2[nd] accused in C.C. No.532 of 2004 on the file of the Judicial First Class Magistrate Court-II, Neyyattinkara. In this petition filed under Section 482 of the Cr.P.C., he seeks to quash all further proceedings in Annexure-A2 final report and Annexure-A6 charge framed as against him. 2. Heard the learned counsel appearing for the petitioner and the learned Additional Director General of Prosecution. 3. According to the learned counsel, the continuance of criminal proceedings against the petitioner is a clear abuse of process. He would rely on the decision of the Supreme Court in **State of Haryana v. Bhajan Lal** [(1992) SCC (Cr) 426] and it is contended that this is a fit case warranting exercise of powers under Section 482 to quash the proceedings. 4. The learned Additional Director General of Prosecution would refute the submissions and it Is contended that on more than three occasions, the petitioner herein had approached this Court under Section 482 of the Cr.P.C. and under Article 227 of the Constitution of India seeking to terminate the criminal proceedings. CRL.MC:2087/2019 3 This Court has occasion to consider his submissions in great detail and had repelled the same. He would refer to Annexure-A7 order dated 18.8.2008 and Annexure-A8 order dated 2.6.2010, which were produced by the petitioner pursuant to directions issued by this Court. While dismissing Crl.M.C.No.3127 of 2010 by order dated 2.6.2010, this Court had occasion to observe as follows in paragraph No.7 of the order. “In both these cases the respective petitioners admittedly did not plead for discharge and a charge has been framed against them and the case stand posted for trial. In Criminal M.C.No.3127/2009, the case is pending before the Judicial First Class Magistrate Court-II, Neyyattinkara as C.C. No.532 of 2004. Since the petitioners in both these cases did not plead for a discharge and the trial of the respective cases has started with the framing of charge in both cases, the proper remedy of the petitioners is to raise their respective contentions before the trial court during the trial of the case. One of the contentions raised by the petitioners in Crl.M.C. No.2115/2009 is that the activities carried on by the petitioners were perfectly legal. This contention can also be raised during the trial of the case. One of the contentions raised by the petitioner in Crl.M.C. No.3127/2009 is that by virtue of Section 20(2) of the Indian Telegraph Act 1885, the offence under Section 20(1) of the Telegraphic Act is a CRL.MC:2087/2019 4 non cognizable offence and since sub section (2) contains a non-obstante clause overriding the provisions of the Cr.P.C., the learned Magistrate has no jurisdiction to take cognizance of the offences on police report and the said provisions will override Section 155(4) Cr.P.C. This is also a contention which can be raised before the court below during the trial of the case. Since the respective courts have framed a charge against the petitioners, the appropriate course available to the petitioner is to face the trial. If a question of identity does not arise during the trial of the case, the petitioners may file applications for personal exemption during the trial of the case and in case petitioners file petitions incorporating the necessary averments, the learned Magistrate shall exempt them from the personal appearance during the trial of the case.” 5. It appears that immediately thereafter, the petitioner preferred W.P(C) No.6735 of 2015 seeking various relief, including one for investigation by CBI. By judgment dated 3.3.2015, recording the submission of the petitioner that he is not desirous of prosecuting the same, the writ petition was dismissed as withdrawn by this Court. 6. Later, the petitioner filed O.P (Crl.) 505 of 2018 before this Court seeking to quash the entire proceedings on various grounds. This Court after taking note of the sequence of events, CRL.MC:2087/2019 5 held that the petitioner is not entitled to challenge the final report since the trial court has already found by a judicial order dated 1.8.2011 that there is a _prima facie_ case against him. 7. It is submitted by the learned ADGP that this petition may not be entertained in view of the above sequence of events. 8. In reply, the learned counsel appearing for the petitioner placed reliance on the decision of the Apex Court **Superintendent and Remembrancer of Legal Affairs, W.B.** v. **Mohan Singh and** **others** (AIR 1975 SC 1002) and he would contend that there is no embargo in approaching this Court by filing fresh application if he is to make out sufficient grounds for interference. According to the learned counsel, this Court had no occasion to consider the contentions advanced by the petitioner in paragraph Nos. 17 to 19 of the instant petition. 9. I have considered the submissions advanced and have gone through the materials that are made available. 10. As rightly submitted by the learned Additional Director General of Prosecution, the petitioner had approached this Court on more than one occasions seeking termination of proceedings. As is CRL.MC:2087/2019 6 evident from Annexures-A7 to A10, the contentions advanced by the petitioner were dealt with by this Court and it was found that the same was meritless. While disposing of O.P.(Crl) No.505 of 2018, this Court had occasion to observe that it was after seven years, after framing of the charge, that the petitioner has ventured to quash the final report. The said petition was dismissed on 5.12.2018 and it was immediately thereafter, on 15.3.2019, that the instant petition is filed. 11. There can be no dispute with the proposition of law enunciated in the judgment relied on by the learned counsel appearing for the petitioner, 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. 12. 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. 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 CRL.MC:2087/2019 7 exercising jurisdiction under Section 482 of the Code, the High 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 full-fledged 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 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 Section 482 of the Cr.P.C. (See **MCD v. Ram Kishan Rohtagi** , [(1983) 1 SCC 1]; **Soundaram N v. P.K. Ponnuraj and Another** [(2014) 1 SCC 616]). 13. From the perusal of the materials on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the petitioner. All the submissions made CRL.MC:2087/2019 8 at the Bar relate to disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 of the Code. At this stage, only _prima facie_ case is to be seen in the light of the law laid down by Hon’ble Supreme Court in case of **R.P. Kapur v. State of Punjab** (AIR 1960 SC 866), **State of Haryana v. Bhajan Lal** (1992 SCC (Cr) 426), **State of Bihar v. PP Sharma** (1992 SCC (Cr.) 192), **Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another** [2005 SCC (Cr.) 293] and more recently in **Tilly Gifford v. Michael Floyd Eshwar and Another** [AIR 2017 SC 3823]. Having considered all the relevant aspects, I find no reason to entertain this petition. This petition is accordingly dismissed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ //TRUE COPY// P. A TO JUDGE CRL.MC:2087/2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.264/1997 OF PARASSALA POLICE STATION.** - **ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CB CID CRIME NO.143/1997 FILED BEFORE COURT JUDICIAL FIRST CLASS MAGISTRATE II, NEYYATTINKARA.** - **ANNEXURE A3 TRUE COPY OF THE DEPOSITION OF INFORMATION EXAMINED AS CW1 IN CC NO.532/2004 OF JFCM-II, NEYYATTINKARA** - **ANNEXURE A4 TRUE COPY OF ORDER DATED 1/11/13 PASSED BY JUDICIAL FIRST CLASS MAGISTRRATE -II, NEYYATTINKARA ON C.M.P.NO.5769/2013 IN CC NO.532/2004.** - **ANNEXURE A5 TRUE COPY OF THE ORDER OF THIS HONOURABLE COURT DATED 06/02/2018 IN CRL.MC.NO.5705/2016 PASSED BY THIS HONOURABLE COURT** - **ANNEXURE A6 TRUE COPY OF THE CHARGE FRAMED BY THE COURT BELOW IN CC.NO.532/04 OF THE JFCM II, NEYYATTINKARA.** - **ANNEXURE A7:- TRUE COPY OF THE ORDER DATED 18/08/2008 IN CRL.M.C. NO.1652/2008.** - **ANNEXURE A8:- TRUE COPY OF THE COMMON ORDER DATED 02/06/2010 PASSED IN CRL.MC. NO.2115 AND CRL.MC. 3127/2009 BY THIS HONOURABLE COURT.** - **ANNEXURE A9:- TRUE COPY OF THE JUDGMENT DATED 03/03/15 IN WRIT PETITION © NO.6735/2015 DISMISSING THE W.P. AS WITHDRAWN** - **ANNEXURE A10:- TRUE COPY OF THE JUDGMENT DATED 05/12/2018 IN OP(CRL) NO.505/2018.**