SAMIKSANTRA v. STATE OF KERALA AND MANI

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE1[ST]DAYOFAUGUST2023/10THSRAVANA,1945 CRL.MCNO.203OF2021 ``` ``` AGAINSTTHEORDERINCCNO.1196/2020OFJUDICIALMAGISTRATEOF FIRSTCLASS,KODUNGALLUR ``` ``` - PETITIONER/ACCUSEDNO.3: ``` ``` SAMIKSANTRA,AGED31YEARS S/O.SIDDARTHAKUMARSANTRA,POSTOFFICEROAD, P.O.MIDNAPORE,PASHCHIMMEDINPUR,WESTBENGAL, INDIA,PIN-721101. ``` ``` BYADVS. SARATHBABUKOTTAKKAL REBINVINCENTGRALAN(K/000473/2015) ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT :-`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, KERALAHIGHCOURTOFKERALA-682031. 2MANI,AGED59YEARS S/O.SUBRAMANIAN,THAYATTUPARAMBILHOUSE, CHANDANADESOM,WEST,VEMBALLURVILLAGE, KODUNGALLURTALUK,THRISSURDISTRICT-680671. ``` ## **`BY SRI.VIPIN NARAYAN, SR.PP`** ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 01.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.203OF2021 ``` ``` 2 ``` ## **ORDER** The petitioner herein is the 3rd accused in C.C.No.1196 of 2020 on the file of the Judicial Magistrate of First Class, Kodungallur. In the aforesaid case, he, along with the rest of the accused, are alleged to have committed offence punishable under Section 420 r/w Section 34 of the IPC. 2. Short facts of the case are under :- The prosecution alleges that the petitioner, along with accused Nos. 1 and 4, with the intent to cheat the informant, falsely assured him that he would be provided with a job as a Marine Engineer at V SHIPS Company situated at Chennai. The informant, believing the assurance, transferred a sum of Rs. 50,000/- to the account of the first accused. Various other amounts were also transferred. However, the job was not provided as assured. 3. The learned counsel appearing for the petitioner submitted that a detailed evaluation of the prosecution materials will not reveal any wrongdoing on the part of the petitioner. According to the learned counsel, the essential ingredients of the offences alleged against the petitioner are absent, and hence, the continuance of proceedings will only be an abuse of process. It is pointed out that the accused are all persons residing in various ``` CRL.MCNO.203OF2021 ``` ``` 3 ``` States, and it is incomprehensible that they would have joined together to commit the offences as alleged. It is further submitted that the mere fact that the representation was not honoured subsequently is no reason to fasten criminal liability on the petitioner. 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 the exercise of powers under Section 482 to quash the proceedings. 4. The learned Public Prosecutor, on the other hand, submitted that final report has already been laid and the matter is now pending before the learned Magistrate. 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 charge to be groundless, he is empowered to discharge the accused. 5. I have carefully considered the rival contentions. 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 ``` CRL.MCNO.203OF2021 ``` ``` 4 ``` 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. 6. 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 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 the 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 ``` CRL.MCNO.203OF2021 ``` ``` 5 ``` 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]). 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. 7. In the case on hand, the charge sheet has been filed before the court below. The procedure for trial of warrant cases by Magistrates is provided for in Chapter XIX of the Code. Section 238 of the Code specifically provides that at the stage of framing of charge, it is obligatory upon the learned Magistrate to hear the prosecution and the accused and if the learned Magistrate 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 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. I am of the view that the petitioner has to approach the learned Magistrate and advance his contentions at the appropriate stage. I find no good reason to interfere with the proceedings under Section 482 of the Cr.P.C. ``` CRL.MCNO.203OF2021 ``` ``` 6 ``` 8. At this stage the learned counsel appearing for the petitioner submitted that the petitioner may be permitted to plead discharge in absentia. Having regard to the circumstances stated, I am inclined to allow the request. Resultantly, this petition is disposed of permitting the petitioner to take all plea/defence before the learned Magistrate in the course of framing charge and at the time of trial. Petitioner is permitted to plead discharge in absentia appearing through counsel. It is made clear that the observations made above will be confined to the disposal of this petition. The petition will stand dismissed, however, with the above observations. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** SMA ``` CRL.MCNO.203OF2021 ``` ``` 7 ``` ## **`APPENDIX OF CRL.MC 203/2021`** ``` ANNEXUREA1CERTIFIEDCOPYOFTHEFIRDATED25.07.2018IN CRIMENO.529/2018OFMATHILAKAMPOLICESTATION. ANNEXUREA2CERTIFIEDCOPYOFTHEFINALREPORTDATED 27.08.2020INCRIMENO.529/2018OFMATHILAKAM POLICESTATION. AnnexureA3ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW1 /2NDRESPONDENTGIVENTOTHESIOFPOLICE MATHILAKAMDATED26/07/2018 AnnexureA4ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW1 /2NDRESPONDENTGIVENTOTHESIOFPOLICE MATHILAKAMDATED21/03/2020 AnnexureA5ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW2 NIDHINBENY,S/OMANIGIVENTOTHESIOFPOLICE MATHILAKAMDATED10/08/2018 AnnexureA6ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW2 NIDHINBENY,S/OMANIGIVENTOTHESIOFPOLICE MATHILAKAMDATED21/03/2020 AnnexureA7ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW2 NIDHINBENY,S/OMANIGIVENTOTHESIOFPOLICE MATHILAKAMDATED20/08/2020 AnnexureA8ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW3 CAPTAINSACHITSAHOONJAMDOFVSHIPS,SHIP MANAGEMENTINDIAPVTLTD.GIVENTOTHESCPOOF POLICEMATHILAKAMDATED18/11/2018 AnnexureA9ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW4 NANDHINI,HRADVISOR,VSHIPSGIVENTOTHESI OFPOLICEMATHILAKAMDATED18/11/2018 AnnexureA10ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW5K KMUHAMMEDSHAHIL,S/OMUSTHAFAGIVENTOTHESI OFPOLICEMATHILAKAMDATED18/11/2018 ``` ``` CRL.MCNO.203OF2021 ``` ``` 8 ``` ``` AnnexureA11ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW6 SHEEBAVR,MANAGINGDIRECTOROF POOVATHUMKADAVUFARMER'SSERVICECOOPERATIVE BANKGIVENTOTHESIOFPOLICEMATHILAKAMDATED 23/03/2020 ``` ``` AnnexureA12ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW7 SATHEESHASSISTANTMANAGERPUNJABNATIONALBANK PARAMEKKAVUTHRISSURGIVENTOTHESIOFPOLICE MATHILAKAMDATED17/08/2020 AnnexureA13ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW8 JOJIJACOBBRANCHMANAGER,KOTAKMAHINDRABANK WESTFORT,THRISSURGIVENTOTHESIOFPOLICE MATHILAKAMDATED17/08/2020 AnnexureA14ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW9M KRISHNAKUMAR,CHIEFMANAGER,SBINORTHNADA, KODUNGALLURGIVENTOTHESIOFPOLICE MATHILAKAMDATED21/08/2020 AnnexureA15ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW10 SCPOSATHYANOFMATHILAKAMPOLICESTATIONGIVEN TOTHESIOFPOLICEMATHILAKAMDATED18/11/2018 AnnexureA16ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW11 SCPOSEBI,MATHILAKAMPOLICESTATIONGIVENTO THESIOFPOLICEMATHILAKAMDATED18/11/2018 AnnexureA17ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW12 GRADESICLEESON,MATHILAKAMPOLICESTATION GIVENTOTHESIOFPOLICEMATHILAKAMDATED 21/03/2020 AnnexureA18ACERTIFIEDCOPYOFTHESTATEMENTOFTHECW13 GRADEASIBABU,MATHILAKAMPOLICESTATIONGIVEN TOTHESIOFPOLICEMATHILAKAMDATED21/03/2020 ```