Shahul Hameed v. State of Kerala and The Sub Inspector of Police, Nallalam Police Station, Kozhikode

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 CRL.MC NO. 6418 OF 2023`** ``` CRIMENO.1030/2014OFNallalamPoliceStation,Kozhikode INCC343/2015OFJUDICIALMAGISTRATEOFFIRSTCLASS-V, KOZHIKODE ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` SHAHULHAMEED AGED47YEARS S/O.NOORUDHIN,MATTUMMALPARAMBU,MUTHIRAPARAMBATH, - VAIDYARANGADI,RAMANATTUKARA,KOZHIKODE-,PIN673633. ``` ``` BYADVS. PRATHAP.S.R.K. ANNOLIVIAVALLAVANADAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATEOFKERALA,REPRESENTEDBYPUBLICPROSECUTOR - HIGHCOURTOFKERALA,ERNAKULAM682031. ``` ``` 2THESUBINSPECTOROFPOLICE - NALLALAMPOLICESTATION,KOZHIKODE-,PIN673019. ``` ``` SMT.NEEMAT.V,SR.PP THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 14.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.6418OF2023 ``` ``` 2 ``` ## **`ORDER`** The petitioner herein is the 1st accused in C.C No.343 of 2015 on the files of the Judicial Magistrate of First Class V, Kozhikode. In the aforesaid case, he is facing prosecution for having committed offences punishable under Sections 342, 323, 420 r/w Section 34 of the IPC. 2. The short facts of the case leading to the registration of the crime are as under: The de facto complainant, availed a loan from the Koduvally Cooperative Housing Society Ltd and committed default. He states that when coercive proceedings were initiated by the society, he rushed to the petitioner and others who were the office bearers of the Kerala State Debt and Debt Trap Victims Association. The said association is registered as a society and functioning with the objective of redressing the grievances of persons who are confronted with debt related problems and cases initiated by banks and other financial institutions. The complainant alleges that based on assurances made, certain amounts were handed over for one reason or the other. However, no assistance was rendered. When the complainant went to the office on 02.10.2014 to redress his grievance, he was confined by the accused in the office room and he was allegedly assaulted. He lodged a complaint before the police which led to the ``` CRL.MCNO.6418OF2023 ``` ``` 3 ``` registration of the crime. After completion of investigation, final report was laid before the court. 3. The learned counsel appearing for the petitioner submits that the allegations in the final report will not disclose any offence. According to the learned counsel, the continuance of the criminal proceedings is an abuse of process as the version of the complaint in the FI Statement or the version of the witnesses in the Final Report are contrary to each other. According to the learned counsel, there is delay in setting the law in motion and on that sole ground, the final report is liable to be quashed. 4. The learned Public Prosecutor would oppose the submissions. He would point out that the petitioner herein, along with the rest of the accused, had earlier approached this Court and had preferred Crl. M.C No.3004 of 2015 seeking to quash the final report. As the petitioner failed to appear before the Court, the petition was dismissed by Annexure 10 order dated 11.1.2021. Raising the very same contentions, the petitioner has again approached this Court. It is further submitted that enough evidence has been collected by the investigating agency linking the petitioner herein with the incident. 5. I have considered the submissions advanced and have perused the records. 6. I find that the petitioner along with rest of the accused had ``` CRL.MCNO.6418OF2023 ``` ``` 4 ``` earlier approached this Court and had preferred Crl.M.C. No.3004/2015 seeking to quash the entire proceedings. The said petition was dismissed by order dated 11.01.2021. The said order reads as under: It is the case of the year 2015. Adv. Smt.Sheeja appeared on behalf of the counsel for the petitioners. The counsel for the petitioners remained absent. Earlier it was dismissed for default. It was restored and again came up for hearing. This would show what is behind it. Hence the Crl.M.C. is dismissed for non-prosecution. 7. Two years after the dismissal of the earlier petition and prior to the commencement of the trial, the petitioner has yet again approached this Court raising the very same contentions. Even otherwise, I find from the FI statement that the specific allegation is that the petitioner herein had assaulted the informant when he entered the office. The de facto complainant, who was made a party in the earlier proceeding, has not been arrayed as a respondent herein. It appears that the intention is only to protract the proceedings after the trial has commenced. 8. It is well-settled by now that when a plea for quashing a prosecution in its nascent stages is made, this Court is entrusted with the responsibility of ascertaining whether the uncontested allegations outlined in the complaint or the charge constitute an offense. In the exercise of jurisdiction under Section 482 of the Code, this Court is not justified in minutely scrutinizing the materials that are yet to be presented and evaluated in their proper context. Jurisdiction under the provision must be ``` CRL.MCNO.6418OF2023 ``` ``` 5 ``` exercised sparingly, reserving it for exceptional circumstances, and should not be exercised to stifle a legitimate prosecution. At this juncture, only a prima facie case ought to be considered, in accordance with the legal principles enunciated by the Supreme Court in landmark cases such as **R.P. Kapur vs. State of Punjab** (AIR 1960 SC 866), **State of Haryana vs. Bhajan Lal** (1992 SCC (Cr) 426), **State of Bihar vs. PP Sharma** (1992 SCC (Cr.) 192), **Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haq and another** (2005 SCC (Cr.) 293), and more recently in **Neeharika Infrastructure Pvt Ltd v. State of Maharashtra and Others** [2021 SCC Online SC 315]. 9. Upon careful examination of the available materials and evaluation of the records in the factual backdrop of the present case, I am of the view that it would be premature to deduce that no offense has been established against the petitioner at this stage. Upon perusal of the entirety of the charge sheet, it becomes evident that specific allegations have been leveled against the petitioner, invoking specific offenses under the Indian Penal Code. The arguments put forth by the learned counsel concerning purported contradictions in the witnesses' statements, absence of serious injuries, the timeliness of the complaint, the presence of the accused during the incident, and other related matters fall within the domain of consideration by the Trial Court at the appropriate stage. This Court is not justified in assessing the appropriateness, veracity, or accuracy ``` CRL.MCNO.6418OF2023 ``` ``` 6 ``` of the allegations mentioned in the charge at this juncture based on the CD statements; rather, these aspects are to be deliberated upon by the trial court at the opportune stage after evaluating the evidence adduced before court. It would be prudent for this court to abstain from expressing any opinion regarding the merits of the allegations at this stage, so as to prevent any prejudice to either the prosecution or the accused. This petition will stand dismissed. ``` Sd/- ``` **RAJA VIJAYARAGHAVAN V JUDGE** Sru ``` CRL.MCNO.6418OF2023 ``` ``` 7 ``` ## **`APPENDIX OF CRL.MC 6418/2023`** |`PETITIONER’S ANNEXURES`|| |---|---| |`Annexure 1`|`TRUE COPY OF THE APPLICATION WITH CONSENT`| ||`LETTER AND RECEIPT OF PAYMENT OF REGISTRATION`| ||`FEE.`| |`Annexure 2`|`TRUE COPY OF THE ACCOUNTS STATEMENT OF LOAN`| ||`TRANSACTION OF THE DE-FACTO COMPLAINANT ISSUED`| ||`BY THE KODUVALLY CO-OPERATIVE HOUSING SOCIETY`| ||`LTD.`| |`Annexure 3`|`TRUE COPY OF THE COMPLAINT DATED 2/10/2014`| ||`PREFERRED BY SMT. SHAHIDHA, OFFICE JOINT`| ||`SECRETARY OF KERALA STATE DEBT AND DEBT TRAP`| ||`VICTIMS ASSOCIATION.`| |`Annexure 4`|`TRUE COPY OF THE FINAL REPORT IN FIR. NO.`| ||`1031/2014 DATED 9/3/2015.`| |`Annexure 5`|`TRUE COPY OF THE FIR NO. 1030/2014 ON THE FILE`| ||`OF NALLALAM POLICE STATION, KOZHIKODE CITY`| ||`DATED 10/12/2014 WITH COMPLAINT.`| |`Annexure 6`|`TRUE COPY OF THE CHARGE SHEET TOGETHER WITH`| ||`STATEMENT OF THE WITNESSES RECORDED U/S. 161`| ||`CR.P.C.`| |`Annexure 7`|`TRUE COPY OF REPRESENTATION DATED 03/05/2014`| ||`SUBMITTED BEFORE THE KODUVALLY CO-OPERATIVE`| ||`HOUSING SOCIETY.`| |`Annexure 8`|`TRUE COPY OF THE COMMUNICATION DATED 28/2/2014`| ||`ISSUED TO THE DE-FACTO COMPLAINANT AS HANDED`| ||`OVER TO THE PETITIONER.`| |`Annexure 9`|`TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALABAR`| ||`EXPRESS DATED 03/05/2014.`| |`Annexure 10`|`TRUE COPY OF THE ORDER DATED 11/01/2021 IN`| ||`CRL.MC NO. 3004/2015 OF THIS HON'BLE COURT.`| |`Annexure 11`|`TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STATE`| ||`OF THE PETITIONER AFTER THE ACCIDENT.`| ``` CRL.MCNO.6418OF2023 ``` ``` 8 ``` ``` Annexure12 ``` ``` TRUECOPYOFTHEDISCHARGESUMMARYDATED 08/02/2022ISSUEDBYNATIONALHOSPITAL, CALICUT. ```