## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941**
## **Crl.MC.No. 5996 of 2018**
**IN CC NO.322/2018 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY**
**CRIME NO. 267/2018 OF MANANTHAVADY POLICE STATION, WAYANAD DISTRICT**
## **PETITIONERS/ACCUSED:**
|**1**|**SEBASTIAN P.J., AGED 53 YEARS,**|
|---|---|
||**S/O.JOSEPH, LAND TRIBUNAL MANANTHAVADY**|
||**(PERMANENT ADDRESS PUTHENPARAMBIL HOUSE,**|
||**CHUNGAKUNNU POST, KOTTIYOOR VILLAGE,**|
||**KANNUR DISTRICT.**|
|**2**|**MAHESH KURMAR M.V., AGED 34 YEARS,**|
||**S/O. GANGADHARAN P.V., SENIOR CLERK,**|
||**LAND TRIBUNAL, MANANTHAVADY,**|
||**(PERMANENT ADDRESS MEETHALE VEETILE,**|
||**ERMAM P.O., PAYYANNUR-KANNUR DISTRICT).**|
**BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS**
## **RESPONDENTS/COMPLAINANT:**
**1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31, REPRESENTING SUB INSPECTOR OF POLICE, MANANTHAVADY POLICE STATION.**
**2 DEPUTY COMMISSIONER OF COMMERCIAL TAXES KALPETTA, WAYANAD.**
**BY PUBLIC PROSECUTOR SRI.AJITH MURALI**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
CRL.M.C.5996/2018
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## **ORDER**
This petition is filed under Section 482 of the Cr.P.C.
2. The petitioners herein are the accused Nos.1 and 3 in C.C. No.322 of 2018 on the file of the Judicial Magistrate of First Class-II, Mananthavady. They are accused of having committed offences punishable under Sections 170 and 419 r/w. Section 34 of the IPC.
3. The subject crime was registered based on a complaint lodged on 2.3.2018 by the Deputy Commissioner of Sales Tax, Wayanad before the Deputy Superintendent of Police, Kalpetta. In his complaint, he refers to a complaint received from the proprietor of T.H.Traders, wherein the allegation is that on 16.2.2018, a lorry bearing Reg. No.KL-12 B-1542 owned by T.H.Traders was intercepted by a group of persons. One among them was a certain Sunil Kumar, Kalpetta, who had earlier worked as a daily wager in the Sales Tax Department. According to the complainant, the accused Nos. 1 to 3 impersonated themselves as Sales Tax Authorities and asked the invoice from the driver. By impersonating themselves as Sales Tax Authorities, the intention of the accused was to cause disrepute to the Sales Tax Department, is the allegation.
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4. The learned Senior counsel appearing for the petitioner submitted that the allegations are frivolous and vexatious. The 1[st] petitioner is a Gazetted Officer and is the Executive Magistrate working in his capacity as the Tahsildar, Land Tribunal and the 2[nd] petitioner is his subordinate and working in the Land Tribunal at Mananthavady. According to the learned Senior counsel, the petitioners were returning after a field enquiry in a disputed property, over which proceedings were pending before the Land Tribunal, Mananthavady. On their way back, a lorry bearing Reg.No.KL-12-B1542 was found parked in a suspicious manner by the side of the road. Suspecting that the vehicle might have been loaded with illegally imported sand or any other contraband substances, the 1[st] petitioner in his capacity as a Tahsildar, demanded the driver to disclose what was being transported in the lorry. The driver replied that coffee was being transported in the lorry. The driver was asked to present the invoice and after verifying the same, the 1[st] petitioner put his initials with designation on the invoice and left the place. After about three weeks from the date of incident, on 1.3.2018, the owner of the lorry filed a complaint before the Deputy Commissioner of Sales Tax, who, in turn, forwarded a complaint to the Deputy Superintendent of Police, Kalpetta seeking initiation of action. In the said complaint, he has no
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case that the 1[st] petitioner is a Tahsildar and he had inspected the vehicle in his official capacity. It is submitted that detailing all these aspects, the 1[st] petitioner had addressed a letter to the Deputy Commissioner, Sales Tax, on 9.4.2018, with a copy to the Superintendent of Police. However, without considering the explanation offered by the 1[st] petitioner, the police have laid final report before the jurisdictional court. It is further submitted that the confusion had arisen because the 2[nd] accused, who had earlier worked as a driver in the Sales Tax Department, was present along with the petitioners when the inspection was conducted. He would contend that the 1[st] petitioner as a revenue officer is having the powers to inspect and seize vehicles involved in commission of offences under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.
5. Heard the learned Public Prosecutor, who refuted the submissions.
6. I have considered the submissions advanced. After having gone through the records, I find considerable merit in the submission of the learned Senior counsel appearing for the petitioners. In the original complaint, which was laid after three weeks, reference is
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made only to the 2[nd] accused. The allegation is that he along with two others had intercepted the vehicle by impersonating themselves as Sales Tax officers. However, the fact remains that the 1[st] petitioner herein is a Tahsildar and hence, a Government servant. His specific case is that he found a lorry parked on the side of the road in suspicious circumstances and he thought it fit to conduct an inspection.
7. To attract an offence under Section 170 of the IPC, it should be shown that the accused had pretended that they were holding a particular office as a public servant knowing that they do not hold such office. The offence will also be attracted if the accused falsely personates any other person holding such office and in such assumed character does or attempts to do any act under colour of such office. In the case on hand, the accused are Government servants and they had asked for invoice in their capacity as Government servants. In that view of the matter, I do not think that Section 170 of the IPC would be attracted. Insofar as Section 419 of the IPC is concerned, in order to attract the said offence, the accused will have to commit the offence of cheating by personation. All that the petitioners had done was demand the papers and after initialing
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the same, returned it to the driver. The prosecution has no case that the accused had fraudulently or dishonestly induced the driver to deliver any property to any person or that they had induced the driver to do or omit to do anything which he would not have done if he were not so deceived. The only allegation is that by the acts of the petitioners, disrepute was caused to the Sales Tax Department.
8. Now the question is whether this is a fit case, wherein the proceedings are liable to be quashed in exercise of powers under Section 482 of the Cr.P.C. It is settled that judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by the Supreme Court in State of **Haryana v. Bhajan Lal** [1992 Crl.L.J 527]. A note of caution was, however, added
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that the power should be exercised sparingly and that too, in rarest of rare cases.
9. In the case on hand, I am of the considered view that the petitioners herein were roped in as accused on very frail materials. The materials made available do not disclose the ingredients of the offences against the petitioners. The proceedings appear to be mala fide, frivolous and vexatious. I am inclined to allow this petition as the continuance of proceedings against the petitioners would clearly result in abuse of process.
In the result, this petition will stand allowed. Annexure-VI final report and all proceedings pursuant thereto against the petitioners now pending as C.C.No.322 of 2018 on the file of the Judicial First Class Magistrate Court-II, Mananthavady are quashed.
## **SD/-**
**RAJA VIJAYARAGHAVAN V., JUDGE**
KRJ
//TRUE COPY// P.A. TO JUDGE
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
|**ANNEXURE P1**||**TRUE COPY OF THE LETTER OF DEPUTY**|
|---|---|---|
|||**COMMISSIONER OF COMMERCIAL TAXES, WAYANAD**|
|||**TO DYSP, KALPETTA DATED 02.03.2018**|
|**ANNEXURE P2**||**TRUE COPY OF THE FIR IN CRIME NO. 267/2018**|
|||**OF MANANTHAVADY POLICE STATION DATED**|
|||**22.03.2018.**|
|**ANNEXURE P3**||**TRUE COPYOF THE REPORT OFF THE 1ST**|
|||**PETITIONER TO THE 2ND RESPONDENT DATED**|
|||**09.04.2018.**|
|**ANNEXURE P4**||**TRUE COPY OF THE REPORT OF THE 1ST**|
|||**PETITIONER TO THE SUPERINTEND OF POLICE,**|
|||**WAYANAD DATED 17.05.2018.**|
|**ANNEXURE P5**||**TRUE COPY OF THE ORDER IN B.A. NO.**|
|||**3652/2018 DATED 06.06.2018 OF THIS HON'BLE**|
|||**COURT.**|
|**ANNEXURE P6**||**TRUE COPY OF THE FINAL REPORT DATED**|
|||**20.06.2018 IN C.C. NO. 322/18 OF THE**|
|||**JUDICIAL FIRST CLASS MAGISTRATE COURT - II,**|
|||**MANANTHAVADY.**|
|**ANNEXURE P7**||**TRUE COPY OF THE STATEMENT OF CW1.**|
|**ANNEXURE P7**|**A**|**TRUE COPY OF THE STATE MENT OF CW2.**|
|**ANNEXURE P7**|**B**|**TRUE COPY OF THE STATE MENT OF CW3.**|
|**ANNEXURE P7**|**C**|**TRUE COPY OF THE STATE MENT OF CW4.**|
|**ANNEXURE P7**|**D**|**TRUE COPY OF THE STATE MENT OF CW5.**|
|**ANNEXURE P7**|**E**|**TRUE COPY OF THE STATE MENT OF CW6.**|
|**ANNEXURE P8**||**TRUE COPY OF THE MAHAZAR IN C.C.NO. 322/18**|
|||**OF THE JUDICIAL FIRST CLASS MAGISTRATE**|
|||**COURT - 11, MANANTHAVADY.**|
