Suneesh Kumar v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944 CRL.MC NO. 4882 OF 2013 [TO QUASH THE PROCEEDINGS IN CRIME NO.510/2009 OF MALAYINKEEZH POLICE STATION PENDING AS C.C.NO.782/2012 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,KATTAKKADA] ## PETITIONER/ACCUSED: SUNEESH KUMAR AGED 37 YEARS S/O.SIVANANDA PANICKER,S.R.BHAVAN, SANTHUMMOLA,MALAYINKEEZH VILLAGE, TRIVANDRUM BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH ## RESPONDENTS/STATE AND COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682 031. 2 THE DEPUTY SUPERINTENDENT OF POLICE NEDUMANGADU, THIRUVANANTHAPURAM 695 001 BY SRI.SUDHEER GOPALAKRISHNAN. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.02.2022, THE COURT ON 26.04.2022 PASSED THE FOLLOWING: CRL.MC No.4882 of 2013 2 ## O R D E R The petitioner herein is the accused in Crime No.510/2009 of Malayinkeezh Police Station, which is now pending as C.C.No.782/2012 before the Judicial First Class Magistrate Court, Kattakada. Annexure A1 is the final report submitted in the said case, and the offences alleged against the petitioner are under Sections 341,321,324,294(b), and 332 of the Indian Penal Code (IPC). 2. The allegation against the petitioner is that on 26.12.2009 at 6 p.m., while the police party was conducting patrol duty at Santhanmoola junction, they came across an incident in which some people were found engaged in the illegal extraction of sand. On seeing the police party, persons engaged in the said illegal activity fled from the scene, and the police party found the petitioner herein. When the police asked the petitioner about the whereabouts of the persons who ran away from the place, the petitioner CRL.MC No.4882 of 2013 3 allegedly abused the police officers and assaulted them by preventing them from discharging their official duties. Crime was registered based on the same, and the petitioner was arrested from the spot. Later, the final report was submitted, and cognizance was taken by the learned Magistrate as C.C.No.782/2012. This Crl.M.C. is filed by the petitioner for quashing the proceedings in pursuance of Annexure A1 final report. 3. Heard Shri. D. Kishore, the learned counsel for the petitioner and Sri. Sudheer Goapalakrishnan, the learned Public Prosecutor appearing for the 1[st] and 2[nd] respondents. 4. The facts of the case, according to the petitioner, which ultimately led to the filing of this Crl.M.C. are as follows: Earlier, on 19.8.2001, the then Sub Inspector of Police, Malayinkeezh Police Station, while driving his official vehicle bearing Registration No.KBT-4454 hit a motorcycle bearing Registration CRL.MC No.4882 of 2013 4 No.KRC-4244 at Anthiyoorkonam near Malayinkeezh junction. The aforesaid accident resulted in causing injuries to two persons. But the police party attempted to flee from the scene of occurrence, which was prevented by the local people gathered, and the petitioner was one among them. In connection with the same, Crime No.305/2001 for the offences punishable under Section 279, 337 and 338 of IPC was registered against Sri.Vinod Kumar, the then Sub Inspector of Police and Annexure-II, is the F.I.R. in the said case. 5. Apparently, as a retaliation for the aforesaid incident, the petitioner was arrested on 23.8.2001 by the said Sub Inspector of Police along with one K.S.Sreekumar, the then Circle Inspector of Police, Kattakada and two police constables of Malayinkeezh Police Station and he was brutally manhandled by them. The detention of the petitioner was made by the police based on a case foisted against the petitioner as Crime CRL.MC No.4882 of 2013 5 No.289/2021 of Malayinkeezh Police Station. Consequent to the brutal manhandling of the petitioner, he sustained severe injuries, and Annexure-III is the wound certificate issued by the Medical College Hospital, and Annexure-IV is the certificate issued by the Doctor indicating the nature of injuries suffered by the petitioner herein. The contents of the medical certificate are extracted herein as follows: _“This is to certify that Shri. S.R. Suneeshkumar, 29 years residing at Santhumoola, Malayinkil, Trivandrum is suffering from LE-full thickness macular hole in the retina. His VA in LE is 2/60_ _He has a partial permanent visual disability of 25% (Twentyfive percent). This hole in the retina could be a result of Blunt Injury to the left eye due to the alleged assault._ _Trivandrum Dr.Mahadevan 25.09.2001 Assistant Professor Eye Hospital Medical College Trivandrum”_ The Crime which was registered against the petitioner, ie. Crime No.289/2001 was tried by the **==> picture [459 x 13] intentionally omitted <==** S.C.No.564/2006 and the same resulted in the ## CRL.MC No.4882 of 2013 6 acquittal of the petitioner herein. Even though the petitioner submitted complaints against the police officers who assaulted the petitioner, the same was not considered on the ground that no sanction as contemplated under Section 197 of the Cr.PC was obtained. The petitioner pursued the matter further, and ultimately, as per the order dated 6.1.2009, which is produced as Annexure-V, sanction to initiate prosecution against the aforesaid police officials were granted. Cognizance was taken on the complaint of the petitioner by the Judicial First Class Magistrate Court, Kattakada, as C.C.No.561/2010. 6. According to the petitioner, the registration of the crime, which culminated in Annexure-1 final report, is a counterblast to the initiation of prosecution against the said police officers based on the sanction granted by the Government as a consequence of the continued pursuance on the part of the petitioner. The petitioner's specific case is that on 26.12.2009 CRL.MC No.4882 of 2013 7 at 5.45 p.m., while the petitioner was in his house, the police officers came there and inquired about another person. When the petitioner expressed his lack of awareness about the said person, the police assaulted him and forcibly took him to the Malayinkeezh Police Station. Thereafter the petitioner was assaulted with handcuffs on his back, and he was apprehended at the police station. It is contended that on account of the assault, the petitioner suffered a _fracture on 10[th] left rib and tenderness and abrasion on the left hip, cervical spine tenderness, tenderness on dorsal spine, abrasion on lumbar region, contusion in the middle on upper back, tenderness on lower left chest, scapular region and on left wrist joint_ . The injuries were grievous. Annexure-VI is the wound certificate issued by the Taluk Hospital, Malayinkeezh, and Annexure-VII is the outpatient record issued by the Medical College Hospital, Thiruvananthapuram. The petitioner further alleges that the Circle Inspector of Police, Kattakada Police Station discharged the petitioner forcibly CRL.MC No.4882 of 2013 8 from the Medical College at 6.15 a.m. on 27.12.2009 despite the urgent necessity of the petitioner to undergo treatment in the hospital and kept him in Kattakada Police Station till 3 p.m. Later, he was produced before the Judicial First Class Magistrate Court, Kattakada, and the learned Magistrate has taken note of the severe nature of the injuries, sou moto initiated criminal proceedings against the said police officers. The nature of injuries and the pathetic condition of the petitioner herein when he was produced before the learned Magistrate is seen recorded by the learned Magistrate in the remand application and the application submitted by him. It is also to be noted in this regard that, when some of the local people and political leaders came to the Police Station upon being aware of the ill-treatment against the petitioner and his illegal detention, another criminal case was registered against the petitioner and some other persons as Crime No.511 of 2009 for the offences CRL.MC No.4882 of 2013 9 punishable under Sections 143,147,148,149,353,445 and 225 of the IPC. In the remand report and the bail application submitted in Crime No.511/2009 of Malayinkeezh Police Station, the nature of injuries sustained by the petitioner and his physical condition were clearly recorded. The criminal prosecution launched on the basis of sou moto proceedings at the instance of the learned Magistrate is now pending as C.C.No.405/2010 against the police officers who assaulted the petitioner for the offences punishable under Sections 324, 326, 341 r/w. Section 34 of the IPC. 7. The petitioner pursued the matter further regarding the case allegedly foisted against him falsely. Based on the representation submitted by the petitioner, an inquiry was conducted by the Superintendent of Police, and ultimately, a report was filed by him upholding the findings in Annexure-A1 final report submitted against the petitioner herein. Thereafter, on the basis of further representation submitted by the petitioner ## CRL.MC No.4882 of 2013 10 herein, the Deputy Secretary to Government, Department of Home, has conducted a detailed inquiry. Annexure-XII is the file relating to the inquiry report. A perusal of Annexure XII would indicate that the Deputy Secretary to Government has considered all the documents right from the inception of the dispute the petitioner had with the police officers. It is seen that statements of witnesses were also taken by the Deputy Secretary to Government as part of the inquiry. The crucial findings entered by the Deputy Secretary to Government in Annexure-XII are as follows: (a) The inquiry report submitted by the Superintendent of Police was rejected by holding that no serious inquiry was conducted by him. (b) Even though the case of the police is that the petitioner was arrested from a paddy field at Shanthanmoola, the witnesses named Ramesh Kumar, Mukundan and Raju have stated that the petitioner was arrested by the Sub Inspector of Police from his residence. (c) The allegation against the petitioner is that he was arrested from CRL.MC No.4882 of 2013 11 the spot when the police were attempting to capture certain persons who were engaged in the illegal extraction of sand, and they went to the place on the basis of the information received in this regard. However, it was noticed by the Deputy Secretary that in the aforesaid area, there is no river or water channel which is capable of extraction of sand. It was also noticed that even the police do not have a case that the petitioner was engaged in the illegal extraction of sand. (d) It was also found that as per the inquiry report of the Superintendent of Police, the petitioner was sent for treatment at the instance of the District Police Superintendent, but it has come out that he was referred for treatment on the basis of an order in this regard passed by the learned Magistrate. (e) It was found that the petitioner was arrested by the police by linking him with the case relating to illegal extraction of sand, as a retaliation for obtaining sanction to prosecute the police officers of Malayinkeezh Police Station. The Registration of the other case was made by the police when the local people, including the political leaders, came to the police station upon CRL.MC No.4882 of 2013 12 knowing about the detention of the petitioner herein in the police station. 8. On the basis of the aforesaid finding, it was concluded that a false complaint and false proceedings were initiated against the petitioner due to vengeance. In Annexure-XII report, a departmental inquiry was also ordered against the officers involved therein who are Sri. Anilkumar, the Sub Inspector of Police, Sri. KamalasananHead Constable and Sri.Jayaraj-Driver of Malayinkeezh Police Station. This Crl.M.C is filed in the above circumstances. 9. From the perusal of the aforesaid documents, it is evident that a detailed inquiry as to the allegations raised by the petitioner with regard to the circumstances under which Annexure-1 came to be registered against the petitioner is seen conducted by the Deputy Secretary (Home Department). The said report is seen to have been made after taking note of the relevant documents and statements of witnesses. It CRL.MC No.4882 of 2013 13 contains the specific findings to the effect that the prosecution launched against the petitioner in Crime No.510/2019 of Malayinkeezh Police Station was false. Even departmental proceedings were also directed to be initiated against the officers concerned. The said report contains a clear finding that initiation of prosecution against the petitioner was to wreak vengeance for filing complaints and obtaining sanction against some police officers. 10. One of the most crucial findings which clearly reveal the falsity in the prosecution against the petitioner is regarding the manner of arrest made by the police and the place thereof. The specific case of the police was that the petitioner was arrested from a paddy field near Shanthanmoola when the police party inspected the said place consequent to a complaint regarding the illegal extraction of sand was received. In the report, there is a finding that there is no river or water channel in the area mentioned above from ## CRL.MC No.4882 of 2013 14 which sand can be extracted. The above mentioned finding cuts the root of the prosecution case, and the said finding is fortified from the statements given by some of the witnesses who have stated that the arrest of the petitioner was from his residence. This is precisely the case of the petitioner as well. 11. The petitioner has also produced Annexures XIII to XV, which are the replies he received from various authorities under the Right to Information Act. Annexure-XIII is a reply issued by the Secretary to Malayinkeezh Grama Panchayat stating that they received no complaint regarding the illegal extraction of the sand in the area of Shanthanmoola during the period from 1.10.2009 to 26.12.2009. Annexure-XIII(a) is yet another reply issued by the Secretary of Grama Panchyat, Malayinkeezh, wherein it is stated that no proceedings were initiated during the said period against any land owner for illegal extraction of sand. Annexure-XIV is the reply given by the Sub CRL.MC No.4882 of 2013 15 Inspector of Police, Malayinkeezh Police Station. It is stated therein that during the period from 1.1.2009 to 31.12.2009, no complaint was received by Malayinkeezh Police Station in connection with the illegal extraction of sand. Annexure-XV is the reply issued by the Village Officer, Malayinkeezh Village, which would indicate that no complaint regarding illegal extraction of sand was received in his office during the period from 1.10.2009 to 26.12.2009. The aforesaid documents would clearly justify the finding entered by the Deputy Secretary to Government in Annexure-XII. Thus, when all the aforesaid materials are considered, the irresistible conclusion is that the petitioner was falsely implicated in a case as a retaliation for the initiation of prosecution against some police officials. 12. It is true that the consideration of this Crl.M.C. requires examination of certain factual aspects. However, it is evident that a detailed inquiry was conducted by a superior officer of the ## CRL.MC No.4882 of 2013 16 Home Department and arrived at specific findings regarding the falsity of the prosecution initiated against the petitioner herein. The aforesaid findings are fortified by the documents produced by the petitioner in the form of Annexures XIII to XV. These documents are issued by competent Government officers. It is well settled position of law that while considering an application for quashing the proceedings under Section 482 Cr.PC, the documents that are unimpeachable in nature can be considered. Considering the nature of the allegations involved and the findings entered into by the competent authorities, I am of the view that the documents produced by the petitioner as Annexures XII to XV can be relied upon for considering the prayer for quashing the proceedings. In State of Haryana and Others v. Ch.Bhajan Lal and Others[(1992) Supp(1) SCC 335] the Hon'ble Supreme Court framed guidelines regarding the manner by which the exercise of the powers of the High Court in the matter of CRL.MC No.4882 of 2013 17 interfering with the investigation. Among the aforesaid guidelines, guideline No.7 reads as follows: _“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.”_ The facts of this case, as unfolded through the documents produced by the petitioner, particularly from Annexures XII to XV, would indicate that this case squarely comes within the aforesaid category. The repeated assaults on the petitioner by the police is evident from the proceedings. In such circumstances, I am of the view that the prosecution against the petitioner based on Annexure-1 is a clear abuse of the process of law, and I find that this is a fit case in which the powers of this Court under Section 482 Cr.PC can be invoked. In the result, this Crl.M.C. is allowed, and Annexure-1 final report submitted in Crime No.510 of 2009 of Malayinkeezh Police Station and all CRL.MC No.4882 of 2013 18 further proceedings in C.C.No.782/2012 of Judicial First Class Magistrate Court, Kattakada are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.4882 of 2013 19 APPENDIX OF CRL.MC 4882/2013 PETITIONER’S ANNEXURES ANNEXURE 1 TRUE COPY OF FINAL REPORT IN CRIME NO.510/2009 OF MALAYINKEEZHU POLICE STATION ANNEXURE 11 TRUE COPY OF THE FIR IN CRIME NO.305/2001 OF MALAYINKEEZHU POLICE STATION ANNEXURE III TRUE COPY OF THE ACCIDENT CUM WOUND CERTIFICATE DATED 25/8/2001 OF MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. ANNEXURE IV TRUE COPY OF THE MEDICAL CERTIFICATE DATED 25/9/2001 ISSUED BY THE ASSISTANT PROFESSOR OF MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPRUAM ANNEXURE V TRUE COPY OF THE GO (RT) NO.68/09/HOME DATED 6/1/2009 OF THE DEPUTY SECRETARY TO GOVERNMENT ANNEXURE VI TRUE COPY OF THE ACCIDENT CUM WOUND CERTIFICATE DATED 26/12/2009 OF TALUK HOSPITAL, NEYYATTINKARA T ANNEXURE VII TRUE COPY OF THE OUT PATIENT RECORD ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM ANNEXURE VIII TRUE COPY OF THE ENDORSEMENT MADE BY THE LEARNED MAGISTRATE ON THE REMAND APPLICATION ALONG WITH THE REMAND APPLICATION IN CRIME NO.510/2009 OF MALAYINKEEZHU POLICE STATION ANNEXURE IX TRUE COPY OF THE BAIL APPLICATION ALONG WITH THE BAIL ORDER DATED 27/12/2009 IN CRIME NO.510/2009 OF MALAYINKEEZHU POLICE STATION ANNEXURE X TRUE COPY OF THE BAIL APPLICATION ALONG WITH THE BAIL ORDER DATED 31/12/2009 IN CRIME NO.510/2009 OF MALAYINKEEZHU POLICE STATION CRL.MC No.4882 of 2013 20 ANNEXURE XI TRUE COPY OF THE ENDORSEMENT MADE BY THE LEARNED MAGISTRATE ON THE REMAND APPLICATION ALONG WITH THE REMAND APPLICATION IN CRIME NO.511/2009 OF MALAYINKEEZHU POLICE STATION. ANNEXURE XII TRUE COPY OF THE PROCEEDINGS NO.11398/H3/2011/HOME DATED 24/2/2011 OF THE PUBLIC INFORMATION OFFICER, HOME DEPARTMENT ANNEXURE XIII TRUE COPY OF THE INFORMATION REQUESTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, ON 17/1/2010 TO THE SECRETARY, MALAYINKEEZHU GRAMA PANCHAYAT ANNEXURE XIII(a) TRUE COPY OF THE INFORMATION DATED 3/2/2010 GIVEN TO THE PETITIONER BY THE SECRETARY, MALAYINKEEZHU GRAMA PANCHAYATH ANNEXURE XIV TRUE COPY OF THE INFORMATION GIVEN TO ADVOCATE S.SIVAKUMAR BY THE SUB INSPECTOR OF POLICE ,MALAYINKEEZHU ANNEXURE XV TRUE COPY OF PROCEEDINGS NO.1929/2010 DATED 16.3.2010 OF THE VILLAGE OFFICER MALAYINKEEZHU