Shemsudheen v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 CRL.MC NO. 5962 OF 2022 ``` ``` CRIME NO.156/CR/KTM/2006 OF CBCID, PATHANAMTHITTA, Pathanamthitta AGAINST THE ORDER/JUDGMENT CC 65/2016 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM ``` ## **`PETITIONER:`** ``` SHEMSUDHEEN AGED 40 YEARS S/O LATE ALI ACKBER, CHIRACKAKUDY HOUSE, ALLAPRA.P.O, ERNAKULAM DISTRICT, PIN - 683556 BY ADVS. C.A.NAVAS T.K.SASIKUMAR LAYA SIMON ``` ## **`RESPONDENT:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` Smt.REKHA, P P ``` ``` Sri.Rajesh A (Spl.G P) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5962 OF 2022 ``` ``` 2 ``` ## **K.BABU, J** . -------------------------------------- ## Crl.M.C.No.5962 of 2022 --------------------------------------Dated this the 9[th ] day of November, 2023 ## **O R D E R** The Petitioner who is accused No.3 in C.C.No.65/2016 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, seeks to quash the Final Report and all further proceedings against him. 2. The offences alleged against the petitioner and other accused are punishable under sections 458, 471, 419 and 420 r/w Section 34 of the Indian Penal Code and Section (1)(d) r/w Section 13(2) of the Prevention of Corruption Act. 3. The prosecution was initiated based on the complaint filed by the defacto complainant before the Chief Judicial Magistrate’s Court, Pathanamthitta. The learned Magistrate directed the Station House Officer concerned to register the crime and investigate the same under Section 156(3) Cr.P.C. In the complaint, the defacto complainant alleged offences punishable under Sections 405, 416 and 420 of the Indian Penal Code. The Pathanamthitta Police registered Crime No.889/2005 alleging the afore-mentioned offences and proceeded with the ``` CRL.MC NO. 5962 OF 2022 ``` ``` 3 ``` investigation. After that, as per the direction of the State Police Chief, the case was transferred to the Crime Branch, Kottayam Unit for investigation. 4. The Crime Branch, Kottayam Unit completed the investigation and submitted final report before the Enquiry Commissioner and Special Judge, Thiruvananthapuram. 5. In the complaint, the defacto complainant alleged as follows:- Accused No.1, Shri.Hariharan approached her and collected tax receipt in respect of her landed property, nativity certificate and some other documents from her, representing that those documents were required for submitting application to obtain Passport for his son. Accused No.1 and the other accused misused those documents and submitted before the Sales Tax Office, Pathanamthitta for obtaining sales tax registration in favour of accused No.2. 6. In the Final Report, the prosecution alleges the following:- The defacto complainant entrusted copies of the property tax receipt, Identity Card and other relevant documents to accused No.1 for getting Passport to her son. ``` CRL.MC NO. 5962 OF 2022 ``` ``` 4 ``` Accused No.1 misused the same by handing over it to accused No.2, who had taken sales tax registration with the aid of accused Nos.1,5,6 and 7 from the Sales Tax Office, Pathanamthitta by impersonation. The petitioner (accused No.3) and accused No.4 transported goods utilizing the said registration. 7. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. 8. The learned counsel for the petitioner submitted that either in the complaint preferred by the defacto complainant before the Chief Judicial Magistrate’s Court, or in any of the prosecution records submitted along with the final report, there is nothing to connect the complicity of the petitioner in the alleged offences. 9. I have carefully gone through the complaint preferred by the defacto complainant. There is absolutely no mention in the complaint regarding the involvement of the petitioner as to any role played by him in obtaining the tax receipt and other documents from the defacto complainant. The complaint preferred by the defacto complainant essentially alleges, that accused No.1 collected those documents from her representing ``` CRL.MC NO. 5962 OF 2022 ``` ``` 5 ``` that the documents were required for obtaining Passport for her son, and thereafter, misused the same and obtained sales tax registration from the Sales Tax Office, Pathanamthitta. The foundation of the prosecution case is that accused No.1, collected the property tax receipt, nativity certificate and other relevant documents from her making false representation. Later, it was found that those documents were misused for the purpose of obtaining sales tax registration in the name of accused No.2 who is running a business firm by name M/s Classic Veneer Traders at Pathanamthitta. The only allegation against the present petitioner (accused No.3) is that he transported goods utilizing the registration obtained by accused No.2 with the aid of the documents allegedly obtained from the defacto complainant by accused No.1 and there is no case that the present petitioner had played any role in the impersonation allegedly committed for obtaining registration from the Sales Tax Department. 10. This is a case where the FIS, the Final Report and the evidence collected by the prosecution do not disclose the commission of any offence by the petitioner. On the exercise of the extraordinary power under Article 226 of the Constitution of ``` CRL.MC NO. 5962 OF 2022 ``` ``` 6 ``` # India or the inherent power under Section 482 Cr.P.C., the Apex Court in **State of Haryana and Others** v. **Bhajan Lal and Others (1992 Supp. (1) 335)** held thus:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. ``` CRL.MC NO. 5962 OF 2022 ``` ``` 7 ``` (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. The present case is fully covered by category (3), as enumerated in **Bhajan Lal** (supra). I am of the view that, in the present facts and circumstances, the criminal proceedings consequent to the final report in C.C.No.65 of 2016 are liable to be quashed. In the result, the Crl.M.C. is allowed. The final report in C.C.No.65/2016 pending before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram and all consequential proceedings qua the present petitioner stand quashed. Sd/- **K.BABU, JUDGE** saap ``` CRL.MC NO. 5962 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 5962/2022`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`Annexure A1`|`TRUE COPY OF THE FINAL REPORT FILED IN FIR`| ||`NO.156/CR/KTM/06 OF CBCID PATHANAMTHITTA`| ||`FILED BEFORE THE ENQUIRY COMMISSIONER AND`| ||`SPECIAL JUDGE COURT, KOTTAYAM NOW PENDING`| ||`AS CC NO.65/2016 BEFORE THE ENQUIRY`| ||`COMMISSIONER AND SPECIAL JUDGE COURT,`| ||`THIRUVANANTHAPURAM`| |`Annexure A2`|`TRUE COPY OF THE STATEMENT OF WITNESSES`| ||`FILED IN FIR NO.156/CR/KTM/06 OF CBCID`| ||`PATHANAMTHITTA NOW PENDING AS CC`| ||`NO.65/2016 BEFORE THE ENQUIRY COMMISSIONER`| ||`AND SPECIAL JUDGE COURT,`| ||`THIRUVANANTHAPURAM`| |`Annexure A3`|`TRUE COPY OF THE FORENSIC SCIENCE`| ||`LABORATORY REPORT DATED 11.12.2012 FILED`| ||`IN FIR NO.156/CR/KTM/06 OF CBCID`| ||`PATHANAMTHITTA NOW PENDING AS CC`| ||`NO.65/2016 BEFORE THE ENQUIRY COMMISSIONER`| ||`AND SPECIAL JUDGE COURT,`| ||`THIRUVANANTHAPURAM`|