Xavi Mano Mathew v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941** ## **Crl.MC.No.3748 of 2007** ## **CRIME NO.458/2007 OF VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/1ST ACCUSED:** **XAVI MANO MATHEW, MANAGING DIRECTOR, M/S. SOUTHERN FIELD VENTURES, PRIVATE LTD., NEAR COTTON HILLS SCHOOL,, VAZHUTHACAUD, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.V.ANIL SRI.ANTONY C. ETTUKETTIL** ## **RESPONDENTS/COMPLAINANT & DE FACTO COMPLAINANT:** - **1 STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 T.B.AJITH KUMAR THOZHUTHIL VEEDU, T.C.01/758, MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM.(DIED)** ## **ADDL.R3 T.V.AJAYAKUMAR,** **AGED 55 YEARS, THOZHUTHIL VEEDU,T.C 01/758, MEDICAL COLLEGE PO, TRIVANDRUM.** - **ADDL.R4 C.S.SUDHA, AGED 53 YEARS, THOZHUTHIL VEEDU, T.C. 01/758, MEDICAL COLLEGE PO, TRIVANDRUM.** - **ADDL.R5 C.NAINA, AGED 52 YEARS, THOZHUTHIL VEEDU, T.C.01/758, MEDICAL COLLEGE PO, TRIVANDRUM.** Crl.MC.No.3748 of 2007 ..2.. **ADDL.R6 C.S.PARVATHI, AGED 48 YEARS, THOZHUTHIL VEEDU, T.C.01/758, MEDICAL COLLEGE P.O., TRIVANDRUM.** **(ADDITIONAL R3 TO R6 IMPLEADED AS PER ORDER DATED 23/06/2014 IN CRL.MA 5864/2014 IN CRL.MC)** **BY ADVS. SRI.MOHAMMED ANZAR K.J., SPL.G.P. FOR REVENUE SRI.G.BENO** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3748 of 2007 ..3.. ## **ORDER** This petition is filed in the year 2007 with a prayer to call for the records relating to Annexures-A1 and A2 and for quashing the same. 2. Annexure-A2 is the FIR in Crime No.458 of 2007 of the Vanchiyoor Police Station. 3. The petition was filed on 13.12.2007 and has been pending before this Court for over a decade. 4. Considering the long pendency, this Court had posted the matter on 17.06.2019 for final disposal. There was no representation for the petitioner and the case was posted to 25.06.2019 for final orders. No one appeared and the case was posted as a last chance for hearing to 01.07.2019. There was no representation and the case was finally posted today. No one appears for the petitioner even today. The only conclusion that can be arrived at is that the petitioner is not interest in prosecuting this petition. 5. Even otherwise, what is under challenge in this petition is Annexure-A2 FIR. 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. The Apex Court in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in embarking upon an Crl.MC.No.3748 of 2007 ..4.. 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. ## 6. 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 of the Code will be justified in quashing the FIR. In paragraph Nos. 14 and 15, it was held as follows: 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 Crl.MC.No.3748 of 2007 ..5.. 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. (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.” 7. Same view was taken in **Kurukshetra University v. State of Haryana** [(1977) 4 SCC 451], and in **Som Mittal v. Government of Karnataka** [(2008) 3 SCC 574]. 8. After having bestowed my anxious considerations to the contentions in the petition, I am of the view that the petitioner herein has failed to make out a case for quashing the criminal proceedings at the threshold itself. This petition will stand dismissed. SD/- **RAJA VIJAYARAGHAVAN V., JUDGE** //TRUE COPY// P.A. TO JUDGE Bka/ Crl.MC.No.3748 of 2007 ..6.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE A.C.J.M. THIRUVANANTHAPURAM DATED 12/11/2007. ANNEXURE A2 COPY OF THE FIR IN CRIME NO.458/2007 OF VANCHIYOOR POLICE STATION DATED 29/11/2007. ANNEXURE A3 COPY OF THE SALE DEED NO.732/2005 OF PALODE SUB REGISTRY DATED 30/03/2005. ANNEXURE A4 COPY OF THE SALE DEED NO.733/2005 OF PALODE SUB REGISTRY DATED 30/03/2005. ANNEXURE A5 COPY OF THE SALE DEED NO.734/2005 OF PALODE SUB REGISTRY DATED 30/03/2005. ANNEXURE A6 COPY OF THE SALE DEED DATED 08/04/1954. ANNEXURE A7 COPY OF THE SALE DEED DATED 20/07/2007. ANNEXURE 1 TRUE COPY OF THE ORDER DATED 14/12/2007 IN CRL. M.A. 6699/2007 IN CRL. M.C.3748/2007. ANNEXURE I TRUE COPY OF THE GAZETTE NOTIFICATION NO. C421437/2000 DATED 02/01/2001. ANNEXURE II TRUE COPY OF THE PROCEEDINGS DATED 31/01/1976 OF THE TALUK LAND BOARD. ANNEXURE III TRUE COPY OF THE NOTICE ISSUED BY TALUKLAND BOARD, NEDUMANGAD DATED 20/06/1991 TO THE M/S. JAYASREE TEA AND INDUSTRIES TO SURRENDER THE EXCESS LAND. ANNEXURE IV TRUE COPY OF THE LETTER DATED 16/08/2011 ISSUED BY THE TALUK LAND BOARD TO THE DEPUTY SUPERINTENDENT OF POLICE, CBCID.** Crl.MC.No.3748 of 2007 ..7.. **ANNEXURE V TRUE COPIES OF THE SALE DEED NOS. 732/2005, 733/05 AND 734/05 DATED 30/03/2005 OF SRO, PALODE.** **ANNEXURE VI TRUE COPY OF THE PROCEEDINGS NO.17934/07/B DATED 03/10/2007 ISSUED BY REVENUE DIVISIONAL OFFICER CANCELLING POKKUVARAVU.** **ANNEXURE VII TRUE COPY OF THE AGREEMENT DATED 30/03/2005 EXECUTED BETWEEN THE 1ST AND 2ND ACCUSED.** **ANNEXURE VIII TRUE COPY OF THE ORDER DATED 31/07/2012 IN CMP NO.353/12 DATED 31/07/2012.** **ANNEXURE I TRUE COPY OF THE TREATMENT CERTIFICATE OF ADVOCATE ANIL P.V. ISSUED FROM KERALA INSTITUTE OF MEDICAL SCIENCES, THIRUVANANTHAPURAM.** **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R1(A)TRUE COPY OF THE REFER REPORT IN CRIME NO.458/2007 OF VANCHIYOOR POLICE STATION.** **ANNEXURE R1(B)TRUE COPY OF THE COMMUNICATION ISSUED BY THE DISTRICT GOVERNMENT PLEADER, PUBLIC PROSECUTOR DATED 31/12/2010.** **ANNEXURE R1(C)TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE DGP.** **ANNEXURE R1(D)TRUE COPY OF THE JUDGMENT IN WPC NO.30090/2011 OF THIS HON'BLE COURT.** **ANNEXURE R1(E)TRUE COPY OF THE NOTICE DATED 21/02/2012 ISSUED BY THE THIRUVANANTHAPURAM RURAL DEPUTY POLICE SUPERINTENDENT (ADMINISTRATION).** **ANNEXURE R1(F)TRUE COPY OF THE NOTICE DATED 17/08/2012 ISSUED BY THE THIRUVANANTHAPURAM RURAL DEPUTY POLICE SUPERINTENDENT (ADMINISTRATION).** **ANNEXURE R1(G)TRUE COPY OF THE ORDER IN CMP NO.3031/2012 DATED 10/08/2012 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** Crl.MC.No.3748 of 2007 ..8.. **ANNEXURE R1(H)TRUE COPY OF THE ORDER DATED 12/08/2011 IN CMP NO.2108/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** **ANNEXURE R1(I)TRUE COPY OF THE ORDER DATED 01/11/2012 IN CMP NO.3217/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT III, THIRUVANANTHAPURAM.** **ANNEXURE R1(J)TRUE COPY OF THE CMP NO.353/2012 FILED BY THE PROSECUTION BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** **ANNEXURE R1(K)TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN THE ABOVE CMP NO.353/2012.** **ANNEXURE R1(L)TRUE COPY OF THE ORDER IN CMP NO.353/2012 DATED 30/06/2013 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** **ANNEXURE R1(M)TRUE COPY OF THE CMP NO.2946/2012 FILED BY THE PROSECUTION BEFORE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** **ANNEXURE R1(N)TRUE COPY OF THE CMP NO.494/2013 FILED BY THE PROSECUTION BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** **ANNEXURE R1(O)TRUE COPY OF THE COMMON ORDER IN CMP NO.2946/2012 AND CMP NO.494/2013 DATED 20/07/2013 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** **ANNEXURE R1(P)TRUE COPY OF THE STAY ORDER DATED 04/02/2007 IN WPC NO.27821/2007 OF THIS HON'BLE COURT.**