Rugmini, Pankajakashan Nair and Rema v. State of Kerala and Thambayi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **Crl.MC.No.4421 OF 2015** **AGAINST CC 161/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, HOSDURG CRIME NO.633/2014 OF BEKAL POLICE STATION, KASARGOD** ## **PETITIONERS/ACCUSED:** **1 RUGMINI AGED 62 YEARS,D/O.LATE GOVINDAN NAIR AND W/O.PANKAJAKSHAN NAIR, MATTATTAKKATTU HOUSE, CHERUPUZHA, CHERUPUZHA VILLAGE AND POST, TALIPARAMBA TALUK, KANNUR DISTRICT.** **2 PANKAJAKSHAN NAIR AGED 73 YEARS, S/O.PARAMESHWARAN NAIR RETIRED SCHOOL TEACHER, MATTATTAKKATTU HOUSE, CHERUPUZHA, CHERUPUZHA VILLAGE AND POST, TALIPARAMBA TALUK, KANNUR DISTRICT.** - **3 REMA** **AGED 40 YEARS, W/O.SANIL KUMAR, CHERUPUZHA, CHERUPUZHA VILLAGE AND POST, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADV. SRI.A.ARUNKUMAR** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** Crl.M.C No.4421 of 2015 2 **2 THAMBAYI** **AGED 40 YEARS, W/O.V.DAMODHARAN RESIDING AT THORATHOTTY, VILLARAMPOTHY, PERIYA VILLAGE AND POST, HOSDURG TALUK 671121.** **R2 BY ADV. SRI.T.K.VIPINDAS** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.4421 of 2015 3 ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = Crl.M.C No.4421 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 07[th] day of November, 2019 ## **O R D E R** The prayers in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C are as follows: - “i) quash Annexure AI complaint and all further proceedings against the petitioners in C.C.No.161/2015 on the files of Judicial First Class Magistrate Court-II, Hosdurg; - ii) issue any other appropriate order or direction as this Hon'ble Court may deem fit in the interest of justice.” 2. Heard Sri.A.Arunkumar, the learned counsel appearing for the petitioners (accused), Sri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for the 1[st] respondent-State and Sri.T.K.Vipindas, learned counsel appearing for the contesting respondent No.2 (lady de facto complainant). 3. The petitioners herein have been arrayed as accused Nos.1 to 3 among the three accused in Annexure-AIII FIR in Crime No.633/2014 of Bakel Police Station, Kasargode, which has been registered on 11.08.2014, for offences punishable under Secs.341, 448, 427, 506(ii) & 34 of the Indian Penal Code. The allegations in the Crl.M.C No.4421 of 2015 4 complaint is that on 20.03.2014 at about 3 p.m., the accused have criminally trespassed into the property of the complainant and destroyed plantains and caused damages to the complainant and when the same was questioned, the husband of the complainant was threatened that he will be killed by showing a knife. The abovesaid Annexure-III crime has been registered pursuant to the directions issued by the learned Magistrate under Sec.156(3) of the Cr.P.C on Annexure-AII private criminal complaint filed before the said court by the 2[nd] respondent herein, whereby the learned Magistrate has directed the police to register crime and conduct investigation in respect of the allegations raised in the said complaint. The police after conducting detailed investigation, has filed the Annexure-AIV final report dated 04.10.2014 as a refer report in the abovesaid crime holding that the case is only to be referred as it discloses only civil disputes. It appears that the 2[nd] respondent had thereupon filed the impugned Annexure-AI protest complaint dated 19.09.2014, wherein as C.M.P No.7387/2014 before the Judicial First Class Magistrate's Court-II, Hosdurg. The learned Magistrate has taken cognizance to the said protest complaint and the case is now pending as calendar case C.C.No.161/2015 on the file of the said Magistrate's court for the Crl.M.C No.4421 of 2015 5 abovesaid offences. The learned counsel for the petitioners would urge that the very act of the learned Magistrate in taking cognizance in the impugned Annexure-AI protest complaint, inspite of the conclusive findings made by the Investigating Agency in Annexure-AIV refer report, is illegal and _ultra vires_ and is against the legal principles well settled in that regard. This Court has been held in various decisions as in _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794] that a protest complaint could be acted upon provided there is manifest error or manifest miscarriage of justice in the arising out of the refer report or there are exceptional circumstances like new facts, not dealt with in the previous proceedings, etc. In the instant case, on the insistence of the 2[nd] respondent that the allegations in her private criminal complaint was directed to be investigated by the police by virtue of the enabling provisions contained in Sec.156(3) of the Cr.P.C. The police has registered the crime as stated above and has also conducted an intense investigation in the matter and thereafter has filed Annexure-AIV final report dated 04.10.2014 in the said crime as a refer report finding that the allegations disclosed in the said criminal proceedings is mainly of Crl.M.C No.4421 of 2015 6 civil nature. The 2[nd] respondent has not been able to show any additional materials to show that the said findings made by the police in Anneuxre-AIV refer report are patently wrong or that it would result in patent miscarriage of justice. 4. After hearing both sides, the petitioners are right in contending that the impugned Annexure-AI protest complaint is only a repetition or reiteration of the very same allegations earlier raised in Annexure-AII private criminal complaint, which led to the registration of Annexure-AIII crime and ultimately to the commission of Annexure-AIV final report as a refer report. That apart, the petitioners have also pointed out that there are two suits, which are pending between the parties before the Munsiff's Court, Hosdurg on almost the same set of facts. It has been held in various decisions as in _**Dalal.V.R and others Vs. Yogendra Nasanji Thakku and another**_ [2008 (3) KHC 611 SC] and _**Paramjeet Batra v. State of Uttarakhand and other**_ [(2013) 11 SCC 673] that giving colour of a criminal offence to disputes which are mainly in the realm of civil disputes between the parties, is an abuse of the process of the court. It is pointed out that the 1[st] petitioner is aged more than 62 years and 2[nd] petitioner is aged more than 72 years. Since no additional factual Crl.M.C No.4421 of 2015 7 materials have been pinpointed by the complainant for justifying any taking of cognizance in the protest complaint and as the protest complaint is only a mere repetition of the earlier complaint and as the impugned criminal proceedings have arisen mainly on account of property disputes between the rival parties, etc., this Court is inclined to take the view that the impugned proceedings is illegal, _ultra vires_ and improper. In that view of the matter, it is ordered that all proceedings in calendar case C.C.No.161/2015 on the file of the Judicial First Class Magistrate's Court, Hosdurg, which has arisen out of the impugned Annexure-AI protest complaint, as against the accused persons therein, will stand quashed. 5. The petitioner will produce certified copies of this order to the Investigating Officer concerned and the competent court below concerned. Office of Advocate General will forward copy of this order to the Investigating Officer concerned, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd Crl.M.C No.4421 of 2015 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE AI** **A TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-II, HOSDURG AS C.M.P NO.7387 OF 2014** ## **ANNEXURE AII** **A TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE II, HOSDURG AS C.M.P NO.6345/2014.** ## **ANNEXURE AIII** **A TRUE COPY OF THE FIR IN CRIME NO.633/2014 OF BEKAL POLICE STATION** **ANNEXURE AIV** **A TRUE COPY OF THE FINAL REPORT IN CRIME NO.633/2014 OF BEKAL POLICE STATION** ## **RESPONDENT'S/S' EXHIBITS:** **NIL**