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2020 DIGILAW 613 (KER)

Dileep v. State of Kerala

2020-07-17

T.V.ANILKUMAR

body2020
ORDER : T.V. Anilkumar, J. 1. This is a proceeding initiated under Section 482 of the Cr.P.C. by the petitioner seeking to quash Annexure-A5 protest complaint in C.C. No. 4786/2013 on the file of JFCM-II, Ernakulam, instituted for prosecution of the petitioner for offences punishable under Sections 340, 351, 506 read with Section 34, IPC. 2. He is the first accused in the complaint. The third respondent who filed the complaint is a person interested in the affairs of Chittoor Sree Krishna Swami temple. He filed litigations against the adjacent landowners for measurement and demarcation of temple land with a view to clear the encroachments made into Devaswom property. The petitioner is one of the neighbouring land owners. The allegation against the petitioner and co-accused is that on 30.1.2013 at 9 p.m., while third respondent was walking to his house, all the four accused wrongfully restrained him when he reached near the property of the petitioner and criminally intimidated him demanding withdrawal of cases against the petitioner. 3. The petitioner seeks to quash Annexure-A5 complaint on the premise that it is a concocted case purportedly brought into existence against him by the third respondent. It is stated that the third respondent has vengeance against the petitioner since he is a witness to an incident which happened on 30.1.2013 itself at 8 p.m. near the temple property and in front of an NSS auditorium where the second accused in Annexure-A5 complaint had been wrongfully restrained by the third respondent and intimidated. The third respondent further used abusive words also against the second accused. Following Annexure-A1 complaint initiated by the second accused against the third respondent and consequential investigation, he was charge sheeted before JFCM, Ernakulam, for commission of offences punishable under Sections 340, 351, 506 read with Section 34 IPC. Annexure-A2 crime registered against this petitioner and co- accused in respect of the incident that occurred on 30.1.2013 at 9 p.m. near the property of the petitioner was, however, referred as false by Annexure-A4 final report. Annexure-A5 protest complaint thus filed challenging Annexure-A4 report, according to the petitioner, was without any basis whatsoever and only out of third respondent's personal grudge against him. 4. Annexure-A5 protest complaint thus filed challenging Annexure-A4 report, according to the petitioner, was without any basis whatsoever and only out of third respondent's personal grudge against him. 4. It is also contended that the learned Magistrate who issued process did not apply his mind to the sworn statement of third respondent and two witnesses recorded and failed to find out whether any sufficient ground existed justifying issue of process. 5. I heard the learned counsel for the petitioner, the third respondent and also the learned Public Prosecutor. 6. It appears that the incidents that gave rise to Annexure-A5 complaint and Annexure-A3 final report are different. The places of occurrence though being close and proximate, the transaction appears to be different since the incidents took place at an interval of one hour. Petitioner's contention is that only because he happened to be a witness to the occurrence in Annexure-A4 report, he was falsely implicated in Annexure-A5 complaint. The de facto complainant in Annexure-A4 report is the second accused in Annexure-A5 complaint. The petitioner and the second accused in An-nexure-A5 complaint are close friends also. 7. It is contended on behalf of the petitioner that the court below while proceeding to examine sufficiency of ground justifying issue of process, failed to carefully scrutinise the allegation made by the third respondent against the petitioner in the statement to the court under Section 200 of the Cr.P.C. It is also submitted that the two witnesses examined in the inquiry conducted under Section 202 of Cr.P.C. also did not make any allegation against the petitioner identifying him as an offender involved in the occurrence. 8. I went through the sworn statement of the third respondent and also the witnesses. The reference made by the third respondent and witnesses is about the involvement of the second accused in Annexure-A5 complaint. The statements are silent as to the overt act or the specific role allegedly played by the petitioner in the occurrence. His name has not been adverted to by the witnesses or by the complainant in the statements. There is only a general allegation that the complainant was wrongfully restrained. The place of occurrence is a way close to the property of the petitioner. Even if he was present there also, he cannot be faulted since he has every right to be there as the owner of the property. There is only a general allegation that the complainant was wrongfully restrained. The place of occurrence is a way close to the property of the petitioner. Even if he was present there also, he cannot be faulted since he has every right to be there as the owner of the property. What kind of criminal force was used by him is not decipherable from the statements given before the court. Same is the position with respect to the alleged criminal intimidation also. 9. I fail to understand as to how the learned Magistrate could have drawn satisfaction from the materials before him as to existence of ground for issue of process to the petitioner. I am satisfied that without any application of mind, the court below issued the process to the petitioner in a mechanical manner. There is reasonable ground to assume that the third respondent was inimical to the petitioner since the latter was cited as a witness to the occurrence in Annexure-A3 report. Considering all these aspects together, I am of the opinion that Annexure-A5 complaint as against the petitioner is liable to be quashed since continuance of the same would amount to abuse of the process of the court. In a result, Cri. M.C. is allowed and Annexure A5 protest complaint is quashed as against the petitioner. All pending interlocutory applications are closed.