## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.**
**TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943**
**CRL.MC NO. 8331 OF 2017**
**CRIME NO.1785/2017 OF THRISSUR EAST POLICE STATION,**
## **THRISSUR DISTRICT**
## **PETITIONER/S:**
**MR.UMMER AGED 50 YEARS S/O. HAMEED PUTHIYA VEETTIL, CHAZHUR, OLARI DESOM, THRISSUR**
**BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA**
## **RESPONDENT/S:**
- **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031**
- **2 MR. S.R SANEESH THE SUB INSPECTOR OF POLICE ANTHIKKAD POLICE STATION, THRISSUR RURAL, THRISSUR 680 001**
**SRI.RANJIT GEORGE-PP**
## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION**
**ON 18.01.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
CRL.MC NO. 8331 OF 2017
2
## **ORDER**
## **Dated this the 18th day of January 2022**
Petitioner is the accused in Crime
No.1785/2017 of Thrissur East Police Station,
which was registered for the offence punishable under Section 332 of the IPC. Annexure-1 is the
FIR.
2. The allegation in Annexure-1 FIR is as
follows; On 21.10.2017 at 17.45 hours, when the de
facto complainant approached the petitioner to
serve a notice under Section 41A of Cr.P.C in
connection with Crime No.561/2017 of Anthikkad
Police Station under Sections 279, 338 of the IPC,
he assaulted with the de facto complainant. The
de facto complainant is the Sub Inspector of
Police and the offence under Section 332 IPC was
incorporated in such circumstances.
**==> picture [391 x 13] intentionally omitted <==**
seeking to quash all further proceedings in
3
CRL.MC NO. 8331 OF 2017
Annexure-1 FIR.
4. Heard Sri.Prijith P, learned counsel for the petitioner and Sri.Ranjit George, learned Public Prosecutor. Even though notice was sent to the 2[nd] respondent/de facto complainant, as on the date there is no appearance for him.
5. The specific case put forward by the learned counsel for the petitioner is that the registration of Annexure-1 FIR itself is an abuse of process of law, as it is only intended to wreak
vengeance against the petitioner. It is pointed
out that the registration to the said crime was as a retaliation to the complaint submitted by the petitioner as evidenced by Annexure-3, before the Inspector General of Police, Thrissur as against certain acts committed by certain police officers including the 2[nd] respondent herein.
6. Apart from the above, it was pointed out
that, in Annexure-1 First Information Report, the
4
CRL.MC NO. 8331 OF 2017
specific allegation against the petitioner is that, the incident occurred when the de facto complainant was serving notice under Section 41 (A) of the Cr.P.C in connection with Crime No.561/2017 of Anthikad Polcie Station which was registered for the offences punishable under Sections 279 and 338 of the IPC. Annexure-2 is
the First Information Report in Crime No.561/2017 of Anthikkad Police Station. On going through the same, it can be seen that the aforesaid crime was registered against one Sirajudheen, and the offence alleged therein is under Section 118(a) of the Kerala Police Act, 2011. The petitioner herein has nothing to do with the said FIR. My attention
was also brought to the complaint submitted by the
wife of the petitioner which is Annexure-3 on 27.08.2017. On going through the aforesaid complaint, it can be seen that certain allegations are raised against certain police officers
CRL.MC NO. 8331 OF 2017
5
including the 2[nd] respondent herein. It is after submission of the aforesaid complaint and presumably after initiating some proceedings against the de facto complainant, Annexure-1 complaint is seen registered. The learned counsel
for the petitioner also brought my attention to Annexure-5 and Annexure-6 medical records.
Annexure-5 is a certificate of examination issued
by the Medical Officer at General Hospital, Thrissur, as per which, petitioner was brought to the hospital at 6.10 P.M on 21.10.2017 with
certain injuries on his body. On going through
Annexure-1, it can be seen that the incident which
is the subject matter of the aforesaid crime has
occurred on 17.45 hours which is immediately before admission of the petitioner in the hospital. In Annexure-5 it is specifically mentioned that, the requisition to examine the petitioner was received from S.I of police
CRL.MC NO. 8331 OF 2017
**==> picture [8 x 9] intentionally omitted <==**
Anthikad. After the petitioner was brought to the General Hospital, he was referred to the Medical College Hospital which is evidenced from Annexure-
6. In Annexure-6 also, it is specifically
mentioned that, the petitioner was brought to the hospital by CPO 6720 of Anthikad Police Station.
7. By placing reliance on all the aforesaid
materials, it is contended by the learned counsel for the petitioner that, it is a case falsely foisted against the petitioner, as a retaliation of the complaint submitted against the 2[nd] respondent by this crime. When the aforesaid contention is considered on the basis of the available materials, I find some force in the
same. As pointed out by the learned counsel for
the petitioner, Annexure-1 FIR itself was
registered on the basis of the allegation that the
alleged incident occurred when the petitioner was serving a notice to the petitioner under Section
CRL.MC NO. 8331 OF 2017
7
41(A) of the Cr.P.C in connection with Crime
No.561/2017. As is evidenced from Annexure-2, the aforesaid crime is a different crime for which the
petitioner has no connection at all. Thus, the very basis of the allegation against the
petitioner is not in existence. Apart from that, it is evidenced from Annexure-3 that, there is
already a complaint pending against the petitioner as on the date of registration of the crime. Certain allegations are specifically raised
against the 2[nd] respondent in Annexure-3 complaint.
8. Another aspect to be noticed is that, offence under section 332 of IPC, which is the
offence mentioned in Annexure-1 is a cognizable
and non-bailable offence. It is evident from
Annexure-5 and Annexure-6 that, the petitioner was brought to the hospital immediately after the
occurrence of the incident which is the subject matter of Annexure-1 Crime, at the instance of the
CRL.MC NO. 8331 OF 2017
8
2[nd] respondent. It is the case of the petitioner that, even though the police has taken the petitioner to the hospital, they abandoned him in the hospital, which according to the petitioner was due to the nature of injuries sustained by the petitioner. The petitioner also has a case that, he sustained the injuries due to assault made by the police, when he was taken by them into custody, as a retaliation of Annexure-3 complaint. Annexure-1 FIR was registered at 21.35 hrs on 22.10.2017 I.e on the next day. The fact that,
offence under section 332 of IPC is a non bailable and cognizable offence is a relevant aspect in this regard. As pointed out by the learned counsel for the petitioner, had there been an incident as alleged in the Annexure-1, i.e an incident where a police officer was allegedly assaulted, the police would have arrested the petitioner, while he was in their custody. The fact that, the petitioner
CRL.MC NO. 8331 OF 2017
**==> picture [8 x 9] intentionally omitted <==**
was in their custody immediately after the alleged incident, is evident from Annexure-5 and Annexure6. According to the police, the incident alleged in Annexure-1 has occurred when they tried to serve a notice upon the petitioner in connection with Crime No.561/2017 of Anthikad Police Station, for the offences punishable under sections 279 and
338 of IPC. However, Annexure-2 would indicate the
aforesaid Crime is a different crime and the petitioner has no connection with the same. It is also a relevant fact that, as on the date of
registration of Annexure-1 FIR, a complaint submitted by the wife of the petitioner, against
the 2[nd] respondent was pending before the superior
officers of the 2[nd] respondent. When all these
aspects are taken into consideration, I find some
force in the contention of the petitioner. The delay of more than one day in furnishing the
information, is very crucial as well, in the
CRL.MC NO. 8331 OF 2017
10
peculiar facts and circumstances of the case.
9. Considering the entire facts and
circumstances of this case, I am of the view that, the registration of Annexure-1 itself is a clear abuse process of law and the same was registered at instance of 2[nd] respondent, as a retaliation of submission of complaint against him. It is a well settled position of law as declared by the Honouable Supreme Court in **State of Haryana v. Ch. Bhajan Lal and others (AIR 1992 SC 604),** that,
when a criminal proceeding is manifestly attended with _malafide_ and/or where the proceedings were maliciously instituted with an ulterior motive to wreak vengeance on the accused, with a view to spike him due to private and personal grudge, the power under section 482 of Cr.P.C can be invoked. In the facts and circumstance, I find that this is a case coming within that category and therefore is a fit case in which the said powers can be
CRL.MC NO. 8331 OF 2017
**==> picture [16 x 8] intentionally omitted <==**
invoked.
Accordingly, this Crl.M.C is allowed and all further proceedings in FIR 1785/2017 of Thrissur East Police Station are quashed.
**Sd/-**
**ZIYAD RAHMAN A.A**
**JUDGE**
spk
CRL.MC NO. 8331 OF 2017
12
## **APPENDIX OF CRL.MC 8331/2017**
## **PETITIONER ANNEXURES**
- **ANNEXURE 1 TRUE COPY OF F.I.R IN CRIME NO 1785/2017 OF THRISSUR EAST POLICE STATION**
- **ANNEXURE 2 TRUE COPY OF F.I.R NO 561 OF 2017 OF ANTHIKKAD POLICE STATION**
- **ANNEXURE 3 TRUE COPY OF REPRESENTATION DATED 2708-2017 FILED BY THE WIFE OF THE PETITIONER BEFORE THE INSPECTOR GENERAL OF POLICE, THRISSUR**
- **ANNEXURE 4 TRUE COPY OF RECEIPT ISSUED FROM THE OFFICE OF INSPECTOR GENERAL OF POLICE**
- **ANNEXURE 5 TRUE COPY OF THE CERTIFICATE OF EXAMINATION DATED 21-10-2017 ISSUED BY ASSISTANT SURGEON, GENERAL HOSPITAL, THRISSUR**
**ANNEXURE 6 TRUE COPY OF THE CASE RECORDS OF THE PETITIONER ISSUED FROM MEDICAL COLLEGE HOSPITAL, THRISSUR**
**ANNEXURE 7 TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM WEST FORT HOSPITAL, THRISSUR**
**RESPONDENT'S/S ANNEXURES : NIL**
