Shiyad (3rd accused) v. State of Kerala and Gayathri

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938 Crl.MC.No. 5945 of 2016 () --------------------------- AGAINST THE ORDER/JUDGMENT IN CC 249/2009 of ADDL.C.J.M.,TRIVANDRUM DATED CRIME NO. 308/2004 OF POOJAPPURA POLICE STATION , THIRUVANANDAPURAM PETITIONER(S)/3RD ACCUSED.: -------------------------- SHIYAD AGED 43 YEARS, S/O KHANI, PROPRIETOR BROTHERS JEWELLERY, RESIDING AT NAVAZ MANZIL, NEAR LDATTUSSERY DEVEI TEMPLE, KURATTYSHERRY VILLAGE, MANNAR PANCHAYATH, IN ALAPPUZHA DISTRICT.-IN-689622. BY ADVS.SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 2. GAYATHRI, AGED 28 YEARS, W/O RAJ MOHAN, RESIDING AT T.C.17/2088(2), GANGOTHRI, CHARUVILA LANE, POOJAPPURA, THIRUVANANTHAPURAM DISTRICT.PIN-695012. R BY PUBLIC PROSECUTOR, SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CONTD... :2: Crl.MC.No. 5945 of 2016 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE A THE CERTIFIED COPY OF THE FIR IN C.C.NO.249/2009 ON THE FILES OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM AROSE FROM CRIME NO.308/2004, OF POOJAPURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE B THE CERTIFIED COPY OF THE FINAL REPORT/CHARGE SHEET. RESPONDENT(S)' EXHIBITS : NIL ----------------------- //TRUE COPY// P.A TO JUDGE SKS ## **RAJA VIJAYARAGHAVAN V., J. ---------------------------------Crl. M.C. No. 5945 of 2016 ---------------------------------------------Dated this the 26[th ] day of October, 2016** ## **O R D E R** - 1.The petitioner is the accused in C.C. No. 249 of 2009 of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. 2. The prosecution allegation is that the accused Nos. 1 and 2 in furtherance of their common intention, had trespassed into the residence of the 2[nd] respondent on 17.11.2004 at about 3 pm and broke open the Almirah and drawer of the bedroom and committed theft of 44.5 sovereigns of gold ornaments and a mobile phone. 3. On the basis of the said information, crime was registered on 17.11.2004. During the investigation, the 2[nd ] accused, Rajendran was arrested in connection with Crime No. 185 of 2005 of Vattiyoorkavu Police Station. During interrogation, he is said to confessed that he along with the 1[st] accused had committed theft at the residence of the 2[nd] **Crl. M.C. No. 5945 of 2016 -2-** respondent. Consequently, the first accused was arrested and on interrogation, he is alleged to have confessed about the role of the petitioner herein. 4.According to the petitioner, he is running a jewellery shop at Mannar and has nothing to do with the acts of the 1[st] and 2[nd ] accused. It is further submitted that he has been implicated solely on the basis of the confessional statement of accused No. 1. The learned counsel would further submit that Section 411 of the IPC, which is charged against the petitioner will only be attracted when a person dishonestly receives or retains the stolen property, knowing or having a reason to believe the same to be stolen and the said allegation is not there in the final report. It is submitted that no recovery was effected at the instance of the petitioner or the other accused. Therefore, the continuance of proceedings as against the petitioner is nothing, but an abuse of process. The learned counsel relies on a catena of decisions to contend that the continuance of proceedings against the petitioner **Crl. M.C. No. 5945 of 2016** **-3-** is an abuse of process. - 5.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. 6. I have carefully considered the rival contentions. There can be no dispute with the proposition of law enunciated in the judgments relied on by the learned Counsel wherein it has been held that the inherent powers conferred upon the High Court under Section 482 of the 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. - 7.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 **Crl. M.C. No. 5945 of 2016** **-4-** Code in a criminal trial. 8.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 fullfledged enquiry. Though High Court may exercise its power to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power has 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 **Crl. M.C. No. 5945 of 2016 -5-** allegations and the complaint as they were, without adding or subtracting anything, no offence was made out, then the High Court would be justified in quashing the proceedings in the exercise of its power under S.482 CrPC. ( See **MCD v. Ram Kishan Rohtagi** , 1983 (1) SCC - 1; **Soundaram N V P.K. Ponnuraj and Another** ( 2014 (10) SCC 616 ). - 9.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. - 10.In the case in 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. **Crl. M.C. No. 5945 of 2016** **-6-** 11.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. - 12.I am of the view that the petitioner is to approach the learned Magistrate and advance his contentions at the appropriate state. I find no good reason to interfere under Section 482 Cr.P.C. In the result, this petition is disposed of with liberty to the petitioner to seek for discharge under Section 239 of the Code of Criminal Procedure. The petition is disposed off. Sd/- **RAJA VIJAYARAGHAVAN V.,** **JUDGE** SKS //TRUE COPY// P.A. TO JUDGE