Tom Jose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942 CRL.MC.NO.6095 OF 2013** **CMP 1272/2012 DATED 30-05-2012 OF JFMC-I,ERNAKULAM** **CRIME NO.1029/2012 OF PALARIVATTOM POLICE STATION, ERNAKULAM** ## **PETITIONER:** **TOM JOSE, AGED 47 YEARS, S/O.O.J.JOSEPH, NEETHIE, INFANT JESUS BUILDNG, OPP:HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY ADVS. SRI.S.SREEKUMAR (SR.), SRI.M.R.RAJESH,SMT.E.S.SANDHYA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.** **2 THE CIRCLE INSPECTOR OF POLICE, SRI.M.G.SABU, ET NORTH POLICE STATION, ERNAKULAM-682031. 3 VICTIM** **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -----------------------------------------Crl.M.C. No. 6095 of 2013 -----------------------------------------Dated this the 25[th] day of November, 2020 O R D E R The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“......issue an order calling for the records leading to Anx.L order of the Judicial First Class Magistrate Court-I, Ernakulam and FIR No.1029/2012 of Palarivatom Police Station (Anx. M) and quashing the same.”_ 2. Heard Sri.S.Sreekumar, learned senior counsel instructed by Sri.M.R.Rajesh, learned counsel appearing for the petitioner (accused) and Sri.Santhosh Peter, learned Public Prosecutor appearing for official respondents 1 & 2. Though notice has been duly served on contesting respondent No.3 (lady defacto complainant) as can be seen from the endorsement made by the Registry as early as on 10.2.2014, the said party has not entered appearance so far. 3. The case set up by the petitioner in the instant Criminal Miscellaneous Case is as follows: _“The petitioner was the Advocate appearing for the accused persons, who are a couple who approached him during the 1[st] week of April, 2012, seeking legal assistance, in Crime Nos: 306/2011 and 729/2012 of Palarivattom Police Station and Crime No: 479/2012 of_ Crl.M.C. No. 6095 of 2013 ..3.. _Mattanchery Police Station and Crime No: 780/2012 of Kochi Cusba Police Station, Palluruthy. Several proceedings were initiated by the petitioner on instructions furnished to him by the said couple on several occasions, both in his office at Ernakulam and his native place in Idukki during Easter Week and subsequent summer vacation. More than 50 complaints had been filed against the said couple and several complainants were violent and the couple had been threatened by them. The petitioner preferred four anticipatory bail applications for the accused before the Sessions Court, Ernakulam. On the very same day from a telephone call from the 3[rd] respondent the petitioner learnt that her husband was arrested at 11.30 AM from Merla house Miyyar, South Kalappu P.O., Belthangadi Taluk, Dharmasthala, Karnataka State, by the police team headed by Sunil Jacob and S.I. Gopakumar. In the mean time the petitioner had to go for another client's case to Chennai, Tamilnadu. The said case was posted to 04.05.2012. Since she insisted on meeting the petitioner to discuss the future course of action she was asked to meet him at Chennai on 04.05.2012. So on 04.05.2012 she along with her cousin brother, Bineesh,_ Crl.M.C. No. 6095 of 2013 ..4.. _came to Chennai and discussed the matter. As per the instruction of the 3[rd] respondent the petitioner prepared representation showing the true state of facts before various authorities i.e. Human Rights Commission and Women's Commission etc. The same was signed by the 3[rd] respondent herself. From 07.05.2012 the petitioner and his office had been receiving threatening calls from unknown persons who were not disclosing their identity demanding the withdrawal of the anticipatory applications of 3[rd] respondent, in this Court. In such circumstance petitioner filed a complaint before the Advocate General, Kerala State, on 07.05.2012. Thereafter in the evening and after 9 P.M the petitioner got calls on his mobile from an uncle of the 3[rd] respondent from mobile number +918943590243 asking him to withdraw anticipatory bail applications preferred by him for 3[rd] respondent before this Court and alleged that no one had seen the 3[rd] respondent after she left from Chennai. This was yet another attempt on the part of the investigating officer to implicate the petitioner in the issue. The petitioner told him that he was not particular in conducting the case and was waiting for instructions from the 3[rd] respondent. On 24.05.2012 stating all_ Crl.M.C. No. 6095 of 2013 ..5.. _these facts the petitioner filed an affidavit before this Court in Bail Application No.3180/2012 and 3182/2012 and stated that due to the changed circumstances of the case he was not in a position to conduct the cases further on behalf of the 3[rd] respondent. The very same day this Court dismissed the bail applications. It is now seen from the records that within one hour by 2 O' clock on 24.05.2012, the 3[rd] respondent surrendered in JFMC-I, Ernakulam, in one of the case through another advocate. Thereafter on 28.05.2012 in the evening around 5 P.M the 3[rd] respondent along with an S.I named Marthandan and a Sr. C.P.O named Anandaraj and C.P.O HemaChandra came to the petitioner's office. The police said that they brought the 3[rd] respondent as she wanted her original documents back as it was required for her case. The petitioner's juniors prepared a list of 14 documents and after retaining a photocopy returned the originals to her. But the police officials walked out of the office without signing the same. Again the petitioner on the very next day ie, on 29.05.2012 filed a complaint before Advocate General which was also forwarded to the permanent committee to look into the allegations and contra allegations between advocates_ Crl.M.C. No. 6095 of 2013 ..6.. _and police personal. Subsequently it was learnt that while in custody on 30.05.2012 R-3 filed a written complaint before the Judicial First Class Magistrate-I, Ernakulam and the Magistrate had erroneously forwarded the same to the S.I of Police Palarivattom Police Station under Section 156(3) Cr.P.C. contrary to the provisions of Sec. 201(1) Cr.P.C. Based on the said order the Palarivattom Police registered FIR No.1029/2012 as against the petitioner which is registered under Sec. 511 r/w 376, 354 and 212 of the IPC. There was considerable delay in lodging the complaint which was not at all explained. It was prepared which in police custody to falsely implicate the petitioner for illegal enrichment and unlawful gain and to deviate media attention from the frauds committed by the 3[rd] respondent in the various crimes registered against her. The allegations in Anx. K complaint and Anx. M FIR will not make out even a prima facie case for an offence U/s. 511 r/w 376, 354 and 212 of IPC. The petitioner preferred Crl. M.C. No. 1598/2012 seeking anticipatory before the Sessions Court, Ernakulam. The anticipatory bail application was dismissed by the Sessions Court recording the submission of the Prosecutor that the case has been_ Crl.M.C. No. 6095 of 2013 ..7.. _transferred to G2 Police Station, Chennai and as the Magistrate here and the Kerala Police had no jurisdiction to entertain the complaint. Thereafter the 3[rd] respondent changed her lawyer yet again and she preferred a complaint before the Bar Council of Kerala as against the petitioner herein as CP No.5/2012. To the same the petitioner preferred a detailed explanation dated 18.03.2013 substantiating the petitioner's innocence in the matter with documents. Subsequently 3[rd] respondent's lawyer informed that the said complaint had been withdrawn by her. Matters being so recently on 27.11.2013 a Police Head Constable by name Rajesh attached to the North Police Station came to the petitioner's office and informed him that he was to meet the SI and CI of North Police Station with regard to Anx. M Crime No. 1029/2012 of Palarivattom Police Station. As the petitioner was falsely arrayed as an accused in the said case, juniors were sent to make enquiries on 28.11.2013 and came to know that the said FIR had been transferred to Chennai and that the same was returned as no case could be made out.”_ It is in the light of these averments and contentions that the petitioner has filed the instant Criminal Miscellaneous Case on 11.12.2013 with the Crl.M.C. No. 6095 of 2013 ..8.. aforementioned prayers. 4. The case set up by the 3[rd] respondent in Anx. K. private criminal complaint dated 30.5.2018 filed before the JFCM-I, Ernakulam, is that she was involved in quite a few criminal cases and hence she had sought the professional help of the petitioner herein, who is a practicing advocate. Further that, some time prior to 4.5.2012, she was telephonically informed by the petitioner that as he is going to Chennai for a case, she may contact him at Chennai, etc. That, accordingly, she had gone to Chennai along with her cousin brother and met the petitioner in the YMCA hostel, Chennai, where he was staying on 4.5.2012 and that in the said meeting, the petitioner’s behavior was found to be strange, and he asked her to stay in the same hostel for some time. Thereupon she told the petitioner that as her husband has already been arrested by the police, the police may be looking out for her also and therefore it may not be safe for her to stay in YMCA hostel and the petitioner asked her to stay elsewhere. Thereafter, she had taken a room in another hotel and by that time, her cousin brother had left her and the petitioner came to her hotel room when she was alone and acted strangely and had caught hold of her hand and then she Crl.M.C. No. 6095 of 2013 ..9.. wriggled out of it and ran away. The petitioner had called her to Chennai, and the abovesaid conduct of the petitioner would show that he had ulterior motives to sexually assault her and to get sexual favours from her, etc. 5. From a reading of Anx. K complaint it appears that the major incidents had taken place in Chennai. Still the JFCM-I, Ernakulam, has without any proper application of judicial mind has mechanically issued Anx.L order in purported exercise of the powers conferred under Sec.156(3) of the Cr.P.C., whereby the 2[nd] respondent SHO, Palarivattom Police Station, Ernakulam, was directed to register a crime and to conduct investigation. In pursuance thereof, the 2[nd] respondent SHO, Palarivattom, had filed the impugned Anx. M FIR in Crime No. 1029/2012 of Palarivattom Police Station, Ernakulam, for offences punishable under Secs. 5(11), 376, 354 & 212 of the IPC. 6. The 2[nd] respondent investigating officer has filed a statement dated 29.10.2014 in this case wherein it has been _inter alia_ averred that, initially the case was investigated by S.I. of Police, Palarivattom, and the investigation has revealed that the place of occurrence in this case would fall within the territorial Crl.M.C. No. 6095 of 2013 ..10.. jurisdiction of Tamil Nadu State Police Station, and hence the case file was transferred to the Chennai Police authorities concerned. Later, the Chennai police authorities had taken the stand that since part of the offence has occurred in Kerala, the investigation has to be conducted in Kerala by the Kerala police, and after getting legal opinion, the Chennai Police authorities have again re-transferred the case file to the Palarivattom Police Station, Ernakulam, through the State Police Headquarters (Kerala), Thiruvananthapuram. Further, very particularly in para 5 of said statement it is averred by the investigating officer that, the investigating officer had initially questioned the defacto complainant and recorded her statement, and thereafter the investigating officer had issued several notices to the defacto complainant for obtaining more evidences and to visit the place of occurrence for preparing mahazar, but the 3[rd] respondent defacto complainant had refused to co-operate with the investigation and due to her non co-operation, the investigation could not progress, etc. 7. From the pleadings and materials on record it is seen that, the 3[rd] respondent has also filed Anx. Q complaint dated Crl.M.C. No. 6095 of 2013 ..11.. 9.1.2013 against the petitioner before the Bar Council of Kerala, and the said bar council has in turn issued Anx.Q letter dated 25.2.2013 directing the petitioner to offer his response in the matter. Further that, it is averred by the petitioner that, the petitioner had entered appearance before the Bar Council of Kerala and later the petitioner would ascertain that the 3[rd] respondent has not proceeded with the matter in Anx. Q and it appears that the Bar Council has closed the matter. Further, since the police was taking the stand that the petitioner has not only defended the 3[rd] respondent as an accused, but has also helped her to evade from the process of law the police officers were frequently harassing the petitioner and accordingly the petitioner was constrained to file a complaint before the permanent committee to resolve issues between the advocate and the police, which is headed by the learned Advocate General in which, the learned Advocate General has issued Anx.P proceedings dated 16.10.2012 to the Asst. Commissioner of Police, Ernakulam, etc. A reading of Anx.P proceedings would show that the police authorities had came and apprised the said committee that they will not cause any harassment to the petitioner and on the basis of said undertaking, Crl.M.C. No. 6095 of 2013 ..12.. the complaint was closed by the permanent committee. 8. A reading of Anx. K would indicate that, none of the vital ingredients of the offence of attempt to commit rape (Sec.5(11) of Sec.376 of the IPC) are in any manner brought out thereby. It has been held by the Apex Court and various High Courts in decisions as in _**Aman Kumar and Another v. State of Haryana [AIR 2004 SC 1497]**_ that, in order to allege that the accused has committed the offence of attempt to commit rape, the Court must be satisfied that the accused in laid hold of the prosecutrix not only decided to gratify his passions upon her person, but that he intended to do so at all events and notwithstanding any resistance from her part, and that the point of distinction between the offence to commit rape and to commit indecent sexual assault is that, there should be some action on the part of the accused to show that he was going to have sexual connection with her. 9. It will be profitable to refer to paras 8 to 14 of the decision of the Apex Court in _**Aman Kumar and Another v. State of Haryana [AIR 2004 SC 1497]**_ which reads as follows: Crl.M.C. No. 6095 of 2013 ..13.. _“8. The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded._ _9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation._ _10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere_ Crl.M.C. No. 6095 of 2013 ..14.. _preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt._ _11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect._ _12. Though the prosecutrix's version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of PW-11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW-9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape._ _13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such_ Crl.M.C. No. 6095 of 2013 ..15.. _outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:_ _"Decorous in manner and conduct; not forward or lowe; Shame-fast; Scrupulously chast."_ _14. Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her._ 10. On going through the version of the 3[rd] respondent defacto complainant in Anx.K complaint, it is only to be held that the vital ingredients of serious offence of attempt to commit rape as per Sec.5(11) of Sec.376 of the IPC, are not made out. At best, prosecution may say that the offence of outraging modesty of a woman as envisaged in Sec.354 of the IPC is disclosed thereby etc. The other offence involved in this case is the one as per Sec.212 of the IPC, which deals with harbouring offender. Sec.212 of the IPC provides as follows: _“_ _**212. Harbouring offender.** —Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment;_ Crl.M.C. No. 6095 of 2013 ..16.. _**if a capital offence.** —shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine;_ _**if punishable with imprisonment for life, or with imprisonment.** —and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;_ _and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both. “Offence” in this section includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India._ _Exception.—This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender. ”_ 11. A reading of Anx.K private criminal complaint would disclose to any ordinary prudent person that the 3[rd] respondent does not have any remote whisper anywhere therein that the petitioner has harboured any criminal offender. What is projected is totally beyond the comprehension of this Court, as to how the police officer concerned would have registered the impugned Anx.M FIR in Crime No. 1029/2012 where one of the offence thereby is the one as per Sec.212 of the IPC. It appears that the impression of the police is that, the 3[rd] respondent and her husband were already involved as accused persons in quite a few Crl.M.C. No. 6095 of 2013 ..17.. cases involving certain financial mispropriety and the petitioner, as a professional advocate was not only defending her, but was also trying to help from to evade from the process of law. That may be the case of the investigating officer in the crime wherein the 3[rd] respondent has been arrayed as an accused. At best, the investigating officer in that crime may have such a case, but subject to a genuine and bonafide case in that regard. It is really surprising that, the 3[rd] respondent can be imputed with having any case that she is a criminal offender, and that in the process of the petitioner asking her to come to Chennai for professional consultation, the petitioner has harboured/cheated a criminal offender. Any such case put forward by the police is too farfetched and the same cannot be countenanced by any ordinary prudent person who is instructed with the elementary facts and law of the matter. Hence, the only issue to be further determined by the Court is as to whether the case discloses a genuine and bonafide case involving offence as per Sec.354 of the IPC. It is the admitted case of the 3[rd] respondent as well as the police authorities that the 3[rd] respondent and her husband have been arrayed as accused persons in quite a few cases involving some financial scandal, Crl.M.C. No. 6095 of 2013 ..18.. whereby they have allegedly unlawfully caused loss to the aggrieved persons in those crimes. The petitioner was defending her as her advocate both in the lower courts as well as in the High Court. According to the petitioner, due to some professional urgency he had to go to Chennai on the day in question, and the 3[rd] respondent and her husband were frantically calling the petitioner for some emergent consultation, and since the petitioner was going to Chennai and would not return back immediately, he had told her that if the matter is urgent she may come to Chennai for consultation. By the time, the 3[rd] respondent’s husband was arrested. It is true that the petitioner had met the 3[rd] respondent on 4.5.2012. According to the petitioner, the 3[rd] respondent had duly consulted the petitioner and the petitioner had prepared Anx.A petition dated 4.5.2012 addressed to various authorities like the Kerala State Women’s Commission, Kerala State Human Rights Commission, City Police Commissioner, Ernakulam, Asst. Commissioner of Police, Mattanchery, Ernakulam, Superintendent of Police (Rural) Aluva, Ernakulam, Station House Officer, Circle Inspector, Janamythri Police Station, Palarivattom, Circle Inspector, North Paravur Police Station, bringing to the notice of Crl.M.C. No. 6095 of 2013 ..19.. said parties about the case that the 3[rd] respondent has been harassed by various police authorities and that, such harassment under the guise of criminal investigation is legally impermissible, and that such actions should be abated etc. The crucial aspect of the matter is that, Anx.A petition dated 4.5.2012 has been signed by the 3[rd] respondent, and the petitioner would say that Anx.A petitions duly sent to the authorities concerned. If that be so, if any untoward incident had happened on 4.5.2012 as alleged in Anx.K. private criminal complaint dated 30.5.2012, then ordinarily the 3[rd] respondent would not have signed Anx.A petition dated 4.5.2012. These factual aspects are not in any manner disputed by the 3[rd] respondent, who was given ample opportunity by this Court to come forward and respond to this petition as she had been duly served with notice in this criminal miscellaneous case as can be seen from the endorsement made by the Registry as early as on 10.2.2014. 12. The learned Public Prosecutor has also submitted on the basis of instructions of the Investigating Officer that, except the initial stage the 3[rd] respondent has not cared to appear before the Investigating Officer and to co-operate with the investigation Crl.M.C. No. 6095 of 2013 ..20.. despite series of notices have been issued to her. 13. So also, she has given a complaint referred to in Anx.Q to the Bar Council of Kerala, and thereafter she has not cared to prosecute the complaint and had abandoned the complaint. Moreover, even going by the case of the respondent, the petitioner's professional service as an advocate was engaged by the 3[rd] respondent and her husband in connection with their involvement as accused in a series of criminal cases. Therefore in the light of these indisputable factual position, the case of the petitioner that he had asked her to come to Chennai only because of the insistence made by the 3[rd] respondent and her husband that they have to immediately seek professional help of the petitioner, etc appears to be correct. Anx.A petition dated 4.5.2012 has been duly signed by the 3[rd] respondent and sent to various authorities concerned. If as a matter of fact, the above said untoward incident had actually happened on 4.5.2012, it does not stand to reason or logic that the 3[rd] respondent would have signed Anx.A petition. The said crucial aspect would clearly show that the case set up by the 3[rd] respondent is rather based on extraneous and ulterior considerations and therefore the case put forward by the Crl.M.C. No. 6095 of 2013 ..21.. petitioner deserves to be accepted as credible and believable. The 3[rd] respondent has not cared to co-operate with the investigating agency in any substantial manner after the registration of impugned Anx.M FIR. She has abandoned her complaint given to the Bar Council of Kerala. The permanent committee under the chairmanship of the learned Advocate General has also entertained the complaint given by the petitioner regarding the harassment caused to him by the police, and due to their intervention the police authorities have taken the stand that they would undertake that no harassment will be caused to the petitioner and accordingly, said petition was closed. 14. Therefore the petitioner has suffered enough. The agony of the petitioner has been quite prolonged and its about time that the criminal proceedings are terminated by the interdiction of this Court by resort to extra ordinary inherent powers saved and preserved by Sec.482 of the Cr.P.C. The Court would do so as, the totality of the facts and circumstances of this case would disclose that the complaint has been set up by the 3[rd] respondent as per Anx.K for extraneous and ulterior considerations and the incidents would have happened not in the manner as suggested by Crl.M.C. No. 6095 of 2013 ..22.. the prosecution, but would have happened in some other manner. It is not understandable as to how the police could have included the offence as per Sec.212 of the IPC. It is not understandable as to how the police could have included the offence as per Sec.511 of Sec.376 of the IPC, going by the admitted case projected in Anx.K private criminal complaint. The learned Magistrate has also rather mechanically acted by passing orders at Anx.L. After the initial registration of the FIR, the 3[rd] respondent has completely abandoned her interest in the present impugned criminal proceedings that the police is now completely left in the lurch and probing in the darkness, as the 3[rd] respondent has not even cared to co-operate with the investigation. For all these reasons, it is ordered in the interest of justice that the impugned Anx.M FIR in Crime No.1029/2012 of Palarivattom Police Station, Ernakulam, in which the petitioner has been arrayed as the sole accused therein, registered pursuant to Anx. L order dated 30.5.2012 rendered by the JFCM-I, Ernakulam, on Anx.K Crl.M.P. No. 1272/2012 as against the petitioner accused and all further proceedings emanating therefrom as against the petitioner accused will stand quashed and set aside. Crl.M.C. No. 6095 of 2013 **==> picture [25 x 9] intentionally omitted <==** 15. The petitioner will produce certified copy of this order before the Investigating Officer concerned as well as before the JFCM-I, Ernakulam, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 6095 of 2013 ..24.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A**|**A TRUE COPY OF THE COMPLAINT BY 3RD**| |---|---| ||**RESPONDENT DATED 04.05.2012**| |**ANNEXURE B**|**A TRUE COPY OF THE PAPER REPORT IN THE**| ||**NEW INDIAN EXPRESS DAILY DATED**| ||**07.05.2012**| |**ANNEXURE C**|**A TRUE COPY OF THE PAPER REPORT IN THE**| ||**MATHRUBHUMI DAILY DATED 07.05.2012**| |**ANNEXURE D**|**A TRUE COPY OF THE COMPLAINT DATED**| ||**07.05.2012 TO THE ADVOCATE GENERAL**| |**ANNEXURE E**|**A TRUE COPY OF THE NEWS PAPER REPORT IN**| ||**THE MALAYALA MANORAMA DAILY DATED**| ||**08.05.2012.**| |**ANNEXURE F**|**A TRUE COPY OF THE COMMUNICATION**| ||**DT.18.05.12 GIVEN TO BINEESH.**| |**ANNEXURE G**|**A TRUE COPY OF THE AFFIDAVIT WITH OUT**| ||**ANNEXURES FILED BY THE PETITIONER IN**| ||**B.A.3182/2012.**| |**ANNEXURE H**|**A TRUE COPY OF THE COMMON ORDER OF THE**| ||**HIGH COURT DATED 24.05.2012 IN B.A.3180**| ||**AND 3182/2012**| |**ANNEXURE I**|**A TRUE COPY OF THE RECEIPT (LIST OF**| ||**DOCUMENTS DATED 28.05.2012)SIGNED BY THE**| ||**3RD RESPONDENT**| |**ANNEXURE J**|**A TRUE COPY OF THE NOTICE ISSUED FROM**| ||**THE OFFICE OF THE ADVOCATE GENERAL DATED**| ||**16.07.2012 CONVENING A MEETING ON**| ||**02.08.2012 TO CONSIDER THE COMPLAINT**| ||**DATED 26.05.2012.**| |**ANNEXURE K**|**A**|**TRUE**|**COPY OF THE COMPLAINT PREFERRED**| |---|---|---|---| ||**BY**|**THE**|**3RD RESPONDENT IN WRITING**| Crl.M.C. No. 6095 of 2013 ..25.. |**ANNEXURE L**|**A TRUE COPY OF THE ORDER DATED**| |---|---| ||**30.05.2012 IN C.M.P.1272/2012 OF JFCM-**| ||**I,ERNAKULAM**| |**ANNEXURE M**|**A CERTIFIED COPY OF THE FIR NO.1029/2012**| ||**OF PALARIVATTOM POLICE STATION**| |**ANNEXURE N**|**A TRUE COPY OF THE DEROTAGORY PAPER**| ||**REPORT PUBLISHED IN THE MALAYALA**| ||**MANORAMA DAILY DATED 02.08.2012**| |**ANNEXURE O**|**A TRUE COPY OF THE ORDER DATED**| ||**09.08.2012 OF THE HON'BLE SESSIONS COURT**| ||**IN CRL.M.C.1598/2012**| |**ANNEXURE P**|**A TRUE COPY OF THE PROCEEDINGS OF THE**| ||**PCM 8/2012 HELD IN THE CHAMBER OF**| ||**ADVOCATE GENERAL ON 16.10.2012**| |**ANNEXURE Q**|**A TRUE COPY OF THE COMPLAINT FILED BY**| ||**THE 3RD RESPONDENT BEFORE TGHE BAR**| ||**COUNCIL OF KERALA.**|