Thomas D. Kalleli v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV WEDNESDAY,THE16[TH]DAYOFAUGUST2023/25THSRAVANA,1945 ``` ``` CRL.MCNO.2861OF2023 AGAINSTCCNO.777/2014OFJUDICIALMAGISTRATEOFFIRST CLASS-I,CHITTUR ``` ``` PETITIONER/ACCUSEDNO.7: ``` ``` THOMAS.D.KALLELI AGED59YEARS S/ODEVASSYA,NO.47,P.K.RANGANATHANSTREET, SIDHAPUTHUR,COIMBATORENOWRESIDINGATKALLELIHOUSE, XXIII/319-A,PALACEROAD,CHALAKUDYPOST, - THRISSUR,PIN680307 BYADVS. K.J.MOHAMMEDANZAR MUHAMMEDASHIQUE P.K.MINIMOLE A.RADHAKRISHNANNAIR ``` ## **`RESPONDENTS/COMPLAINANT :`** ``` 1STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM, - PIN682031 2RANGEFORESTOFFICER RANGEFORESTOFFICE,KOLLEMGODERANGE, - PALAKKAD,PIN678506 SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 16.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.2861 of 2023 2 ## **ORDER** The petitioner herein is the 7th accused in C.C. No.777 of 2014 on the files of the Judicial Magistrate of First Class I, Chittur. In the aforesaid case, he, along with the rest of the accused, is facing prosecution for having committed the offences punishable under Sections 2(16)(35)(36)(37), 9, 50 & 51(1) and (2) of the Wild Life Protection Act, 1972 and Section 27(1)(e)iv of the Kerala Forest Act, 1961. 2. The prosecution alleges that the accused persons numbered 1 to 6, trespassed into the Kollengode Forest Range, Nenmara VFC item number 35, in a Mitsubishi Montero SUV bearing registration number TN-07-BA-3238. In violation of the provisions of the Wildlife Protection Act, they shot and killed a wild boar (Sus scrofa), slaughtered it, and attempted to remove the same in the vehicle. 3. It appears that the accused, nos.1 to 6, were arrested on the spot while they were trying to make good their escape, and remains of the Animal were seized. In the course of investigation, it was revealed that the 2nd accused is the brother of the petitioner herein, and it was using the vehicle of the petitioner herein that the 2nd accused, along with the rest of the accused, Crl.M.C No.2861 of 2023 3 had trespassed into the forest and shot the wild animal. 4. The learned counsel appearing for the petitioner submitted that the only apparent reason for arraying the petitioner as an accused in the aforesaid case is that he happened to be the registered owner of the vehicle which was used by accused Nos.1 to 6 to hunt and kill the animal. There is no case for the prosecution that the petitioner was present along with the rest of the accused or that he had anything to do with the acts committed by them. The accused No.2 happened to be the brother of the petitioner and other than the said fact, there is nothing to connect the petitioner with the alleged offence. 5. A detailed statement has been filed by the Range Forest Officer Kollengode wherein the facts leading to the registration of the crime and the materials collected during the investigation have been detailed. 6. I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 7. Records made available before this Court disclose that accused No.1 to 6 had trespassed into the forest in the vehicle owned by the petitioner and had committed the forest offence. They were caught red-handed, and the meat was seized along with the vehicle which was used for transporting the same. Insofar as the petitioner is concerned, the only allegation is that the Crl.M.C No.2861 of 2023 4 vehicle owned by the petitioner was used by the accused No’s 1 to 6. I find from the records that the 2nd accused is the brother of the petitioner, and no materials have been collected to substantiate that the petitioner herein had acted in concert with the principal accused persons. It is fairly submitted by the learned Public Prosecutor that the petitioner was implicated only because he is the registered owner of the vehicle and nothing more. He would also point out that even in the confessional statement given by the accused No.1 to 6, there is no mention about the involvement or participation of the petitioner herein. 8. 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 offenses to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: > 1 1992 Supp (1) SCC 335 Crl.M.C No.2861 of 2023 5 **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 Crl.M.C No.2861 of 2023 6 ever reach a just conclusion that there is sufficient ground for proceeding against the accused. - (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. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 9. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under Section 482 of the Code to quash the Crl.M.C No.2861 of 2023 7 criminal proceedings against the petitioner. The petition will stand allowed. The annexure-A1 charge sheet in C.C. No.777/2014 on the file of the Judicial Magistrate of the First Class-I, Chittur, in so far as the petitioner herein is concerned, is quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.2861 of 2023 8 ## **`APPENDIX OF CRL.MC 2861/2023`** ``` PETITIONERANNEXURES: ``` ``` AnnexureA1 ``` ``` TRUECOPYOFTHECHARGESHEETIN C.C.NO.777/2014ONTHEFILEOFJUDICIAL FIRST-CLASSMAGISTRATECOURT-ICHITTUR DATED22.04.2014 ```