Wilson v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940** ## **Crl.MC.No. 5464 of 2013** ## **MC NO. 44/2012 ON THE FILES OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **KOTHAMANGALAM** *** (CRIME NO. 362/2013) OF KOTHAMANGALAM POLICE STATION, ERNAKULAM** ***FIR NO.362/2013 IS CORRECTED AS CRIME NO.967/2013 AS PER ORDER DATED 26.02.2016 IN CRL.M.A.NO.1759/16 IN CRL.M.C.NO.5464/2013** ## **PETITIONER:** **WILSON, AGED 47, S/O.POULOSE, KOLENCHERRY HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM-686691.** **BY ADV. SRI.K.R.VINOD** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 THE CIRCLE INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION, PIN-686691.** - **3 THE SUB INSPECTOR OF POLICE POTHANNICAD POLICE STATION, PIN-686671.** - **4 SMRUTHY (MINOR) D/O.SATHYAN, C/O.KOTTISSERRYKUDY SUNNY, KOTTAPPADY, KOTHAMANGALAM REPRESENTED BY MR.SATHYAN, F/O.MINOR, C/O.KOTTISSERYKUDY SUNNY, KOTTAPPADY, KOTHAMANGALAM, PIN-686692. R1 TO R3 BY PUBLIC PROSECUTOR SRI B JAYASURYA R4 BY BY ADV. SRI.PEEYUS A.KOTTAM** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 5464 of 2013** **2** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in Crime No.967 of 2013 of the Kothamangalam Police Station registered under Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012 and Sections 23 and 34 of the of the Juvenile Justice (Care and Protection of Children) Act. 3. The de facto complainant in the instant case is a girl aged 17 years. The parents of the victim are not in good terms. According to the de facto complainant, the petitioner herein was the counsel appearing for her mother. On 25.05.2013, the victim along with her mother are alleged to have attended the proceedings in a court at Kothamangalam. After the proceedings were over, they had returned in the car of the petitioner. She alleges that the petitioner made sexually coloured remarks and touched her breasts. The mother of child, who was sitting in the back seat, is alleged to ignored the indiscretion of the petitioner. Stating these allegations, a complaint was lodged on 2.7.2013, **Crl.MC.No. 5464 of 2013** **3** based on which, the subject crime was registered. 4. The learned counsel appearing for the petitioner would fervently submit that the initiation of the criminal proceedings is with a view to spite him. The petitioner had been the counsel for the mother of the child and he had secured several orders in her favour against the father of the child. There are bitter disputes between the parents and after the victim had started staying with her father, he has persuaded the child to level false accusations against the petitioner. The learned counsel has also highlighted the long delay in setting the law in motion. Though the incident had allegedly taken place on 25.05.2013, the FIR was registered only on 02.07.2013. It is further submitted that the victim and her mother had earlier filed Annexure-A4 complaint alleging sexual harassment against her father and also his counsel, which would show that she has a habit of raising false allegations. The learned counsel would further contend that Sections 23 and 24 of the Juvenile Justice Act, 1986 has no application and sought for quashing the proceedings as its continuance is clearly an abuse or process. **Crl.MC.No. 5464 of 2013** **4** 5. The learned Public Prosecutor, on instructions, submitted that the crime was registered on the the basis of the statement of a minor child. The statement of the child was recorded under Section 164 of the Cr.P.C by the learned Magistrate and the allegations of sexual abuse were reiterated by her. It is submitted that the allegations being grave and the investigation being in the initial stages, this Court would not be justified in quashing the proceedings. The learned Public Prosecutor would also place reliance on Section 29 of the POCSO Act, 2012 and would contend that when a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of this Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. There are no justifiable reasons to terminate the proceedings at this stage and the matter be left to the investigators to investigate, argues the learned Public Prosecutor. 6. I have considered the submissions advanced and have gone through the case diary. **Crl.MC.No. 5464 of 2013** **5** 7. The minor girl in her 164 statement has levelled serious allegations against the petitioner. The allegations constituting the offence having been clearly stated by the victim. There cannot be any doubt that the allegations are grave. It is by now settled that terminating criminal proceedings at the threshold itself, or at the stage of FIR is to be exercised only in the rarest of rare cases and with great circumspection. It has been held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice. 8. In **R. Kalyani v. Janak C. Mehta and Others** [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in exercise of powers under Section 482 will be justified in quashing the FIR. In paragraph Nos. 14 and 15, it was held as follows: **Crl.MC.No. 5464 of 2013** **6** “14. However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held : "36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage." 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. **Crl.MC.No. 5464 of 2013** **7** (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” Same view was taken in **Kurukshetra University v. State of Haryana** [1977 (4) SCC 451], in **Som Mittal v. Government of Karnataka** [2008 (3) SCC 574] and most recently in **Tilly Gifford v. Michael Floyd Eshwar and Another** (AIR 2017 SC 3823). 9. Time and again, it has been emphasized by the Apex Court as well as this Court that the power under Section 482 of the Cr.P.C would not permit the High Court to go into disputed questions of fact or to appreciate the defence of the accused. The power to interdict a criminal proceeding at the stage of investigation is even more rare. Broadly speaking, a criminal investigation, unless tainted by clear malafides, should not be foreclosed by a Court of Law. 10. After having bestowed my anxious considerations to the submissions and contentions and after having tested them in the light of the binding and illuminating precedents of the Apex Court, I am of the view that the petitioner have failed to make out a case for quashing the criminal proceedings at the threshold itself. **Crl.MC.No. 5464 of 2013** **8** Furthermore, this Court will not be justified in embarking upon an enquiry to determine whether the allegations in the FIR are likely to be established by evidence. I see no reason to interfere with the criminal investigation at this stage. In the result, this petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** DSV/- **Crl.MC.No. 5464 of 2013** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-A1 THE CERTIFIED COPY OF *(FIR NO.362/2013) OF KOTHAMANGALAM POLICE STATION.** *** FIR NO.362/2013 IS CORRECTED AS CRIME NO.967/2013 AS PER ORDER DATED 26.02.2016 IN CRL.M.A.NO.1759/16 IN CRL.M.C.NO.5464/2013** **ANNEXURE-A2 THE COPY OF THE ORDER DATED 01.08.2012 IN M.C.NO.44/2012 IN THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM.** **ANNEXURE-A3 THE COPY OF THE ORDER DATED 26.03.2013 IN M.C.NO.141/2012 IN THE FILES OF THE FAMILY COURT, MUVATTUPUZHA.** **ANNEXURE-A4 THE COPY OF THE COMPLAINT DATED ON 28.11.2012 ADDRESSED TO KERALA HUMAN RIGHTS COMMISSION WITH PROCEEDINGS OF KERALA HUMAN RIGHTS COMMISSION.** ## **RESPONDENT'S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**