Sabari Sreekumar v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943 CRL.MC NO. 4298 OF 2021** **CC 553/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM CRIME 914/2018 OF PALARIVATTOM POLICE STATION** ## **PETITIONER/ACCUSED:** **SABARI SREEKUMAR AGED 30 YEARS S/O. SURENDRAN SREEKUMAR, RESIDING AT ARTECH SAMRUDHI, SYAM MANOR, THAMPURANMUKKU, THIRUVANANTHAPURAM.** **BY ADV SIVARAM R.MENON** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE,** **PALARIVATTOM POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **OTHER PRESENT:** **SR.PP - SRI. RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON 03.11.2021 PASSED THE FOLLOWING:** Crl.M.C.4298/21 2 ## **ORDER** Petitioner is the sole accused in C.C.553/2018 on the file of the Judicial First Class Magistrate's Court-IX, Ernakulam, which arose out of the final report in crime 914/2018 of Palarivattom police station. That crime was registered on 30.06.2018 at 17.30 hours on the basis of an incident happened at 11.00 a.m. that day. The basis of the crime was the first information statement given by Siddique, who is an Assistant Sub Inspector of Police. The first information statement indicates that, that day he was entrusted with the job of taking remand prisoners to Courts from the District Jail, Kakkanad; they were taking remand prisoners in police bus KL-01-BL-7018. They had carried the prisoners including the accused in NIA cases to various courts. Near the Pipeline road at Palarivattom, a Volkswagen car KL-01-BJ-5142 overtook them, stopped across the bus in front and blocked its forward movement. When he got down from the bus and asked the driver of the car why he had stopped the car in front of the bus and informed that they were carrying remand prisoners to Courts, he told them that Crl.M.C.4298/21 3 the police bus had hit on the right portion of the car and did not stop the vehicle. Then he advised him to take the number of the bus and the telephone number of the driver and give a complaint to the traffic police station at Edappally. But he did not oblige and stopped the car in front of the bus causing obstruction to other vehicles also and blocked the road. Then the traffic police was informed and they came and removed the car and then only they could take the bus ahead. Due to the obstruction caused by the driver of the car they could not take the remand prisoners on time before Courts. On that basis the crime was registered and after investigation charge sheet was laid against the petitioner before the Judicial First Class Magistrate's Court-IX, Ernakulam alleging offence under Sections 341, 283 and 353 of the IPC. 2. Now the petitioner, who is the accused, wants to quash the proceedings in C.C.553/2018. According to the learned counsel, the incident was not as narrated by the informant. An offence under Section 353 IPC cannot lie against the petitioner. That day when he was moving in his car from east to west, the driver of the police bus Crl.M.C.4298/21 4 KL-01-BL-7018 drove the vehicle in a rash and negligent manner and near Alinchuvadu, overtook him and due to the rashness and negligence the bus scraped on the right hand side of the car and caused him a loss of Rs.8,000/-. Even after the incident the bus was not stopped and then he followed the bus and near the Pipeline road, overtook the bus and asked the driver about the incident and told to park the bus on the side of the road; then he was told to give a complaint to the police. That was how Annexure-A3 case as crime No.4189/2018 of Ernakulam City Traffic East police station was registered against the driver of the bus. The police had also misbehaved with him; he was taken to Palarivattom police station and then only he realised that a crime was registered against him, without any basis; without recording his arrest, he was made to spend the whole night in the station which amounts to illegal detention. On 01.07.2018 Sunday, he was arrested and produced before Magistrate and remanded to judicial custody. Now he has been falsely implicated in the case, which is sought to be quashed. The learned counsel also produced a photograph of the car showing that there are scratches on Crl.M.C.4298/21 5 the right front side of the car. 3. The learned counsel for the petitioner also relied on the decisions reported in **Devaki Amma v. State of Kerala [1981 KLT 475]** and **Durga Prasad and others v. State of Kerala [2014 (3) KHC 704]** to buttress the contention that so long as the petitioner did not use any criminal force against the police official, offence under Section 353 will not lie against him. So he has prayed for quashing the entire proceedings. 4. I heard the learned Senior Public Prosecutor also. 5. The allegations against the petitioner indicate that the police bus moved behind, overtook the car driven by the petitioner and in that process, the bus scraped through the front right hand side of the car and some scratches were caused to the car; still the bus did not stop. Enraged by the same, the petitioner followed the bus and near the Pipeline road, it was overtaken and stopped in front of the bus. It appears that, that had led to some wordy altercation between the police party and the petitioner, which led to the registration of two crimes, one against the petitioner alleging offence under Sections 341, Crl.M.C.4298/21 6 283 and 353 of the IPC of the Palarivattom police station. On the strength of the complaint given by him, crime 4189/2018 of Traffic police station was also registered against the driver of the bus. But the learned counsel submitted that the latter case stands referred and the police has filed a charge sheet against him, which is illegal and arbitrary. 6. In this factual background, I have no doubt in mind, having regard to the dictum in the two decisions relied on by the learned counsel that an offence under Section 353 of the IPC will not lie against the petitioner. In order to attract offence under Section 353 of the IPC it is essential that the accused had used criminal force against a public servant with the intention of preventing or deterring such public servant from discharging his duties. After rushing through the First Information Statement that led to the registration of the crime and the charge sheet, it is quite obvious that the petitioner did not use any criminal force as defined under Section 349 or 350 of the IPC against the police. In other words, in the absence of use of any criminal force, an offence under Section 353 of the IPC will not lie Crl.M.C.4298/21 7 against the petitioner. 7. That means, the main allegation against the petitioner falls to the ground. This is a case in which alleging that he had committed offence under Section 353 of the IPC, which alone is non-bailable, he was arrested and remanded to judicial custody on a Sunday. I have already found that such an allegation will not attract offence under Section 353 IPC. Even lesser offence under Section 186 of the IPC is not attracted since there was no complaint in writing. What remains is the offences under Sections 341 and 283 of the IPC. Even though it is alleged that the petitioner had caused wrongful restraint to the bus and also created traffic block at the place, the allegations sound rather silly. In fact the situation was the creation of inept handling by the Assistant Sub Inspector and the police driver. After the bus had rubbed against the car of the petitioner, they did not show the elementary courtesy to stop the vehicle and that prompted the petitioner to overtake the bus and stop the car in front of the bus. He only wanted the bus to be parked on the side and to see the damage caused to his car for taking further action. Crl.M.C.4298/21 8 8. We cannot ignore the sentiments of a person whose vehicle was scraped by the alleged rashness on the part of the driver of the bus belonging to the police. If the bus was stopped immediately after the incident and caused a GD entry in the police station concerned, the matter would have ended there. In a busy, overcrowded road, such small traffic occurrences are very common. Ordinarily such incidents are patched up at the spot itself. At times, the affected party will be satisfied if a GD entry is caused in the jurisdictional police station. But due to the unskillful handling, the matter has blown out of proportion and caused the registration of two crimes, one against the petitioner and the other against the driver of the bus. The case against the petitioner initiated at the instance of a police officer was pursued in right seriousness; he was arrested and remanded to judicial custody and later ended up by filing a charge sheet. But the case initiated by the petitioner against the driver was referred in favour of the police. The petitioner has a grievance that the police was not fair to him. There are reasons to endorse this proposition. Without justification, a crime with a non-bailable offence was registered against him, he was Crl.M.C.4298/21 9 promptly arrested and detained in the police station for the whole night and then kept in judicial remand at least for a few days. All the sequence of events indicate that he has already sinned than sinning. 9. As noticed earlier, ingredients of offence under Section 353 of IPC are totally absent. The other allegations are corollary and were incorporated on flimsy grounds, to strengthen the case of the prosecution. Considering the entire circumstances, I am convinced that the Court can exercise its inherent jurisdiction under Section 482 of the Cr.P.C. to prevent the abuse of process of the Court and to secure the ends of justice. Resultantly, the entire proceedings initiated against the petitioner through C.C.553/2018 of the Judicial First Class Magistrate's Court-IX, Ernakulam are quashed and the petitioner shall stand exonerated. The CrlM.C. is allowed as above. Sd/- okb/1.11 **K.HARIPAL JUDGE** //True copy// P.S. to Judge Crl.M.C.4298/21 10 ## **APPENDIX OF CRL.MC 4298/2021** |**PETITIONER ANNEXURE**|| |---|---| |**Annexure A1**|**COPY OF FINAL REPORT FIELD BY IO IN CR NO.**| ||**914/2018 OF PALARIVATTOM POLICE STATION NO**| ||**PENDING BEFORE JUDICIAL FIRST CLASS**| ||**MAGISTRATE, COURT IX, ERNAKULAM AS C.C. NO.**| ||**553/2018.**| |**Annexure A2**|**PHOTOGRAPH OF THE DAMAGED CAR OF THE**| ||**PETITIONER.**| |**Annexure A3**|**COPY OF FIR NO. 4189/2018 FILED BEFORE THE**| ||**ERNAKULAM CITY TRAFFIC EAST POLICE STATION.**|