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2024 DIGILAW 654 (KER)

Arun Thomas v. State of Kerala, Represented By Public Prosecutor

2024-06-13

A.BADHARUDEEN

body2024
ORDER : This Criminal Miscellaneous Case has been filed underSection 482 of the Code of Criminal Procedure to quash Annexure A-1 FIR and Annexure A-2 Final Report in CrimeNo.256/2019 of Kattappana Police Station. The petitioner is the accused in the above crime. 2. In this matter, the prosecution alleges commission of offences punishable under Sections 341, 294(b) and 506 of theIndian Penal Code. 3. Heard the learned counsel for the petitioner, thelearned Public Prosecutor and the learned counsel for thedefacto complainant. Perused the relevant documents in detail. 4. In this case, based on the First Information Statement (FIS) given by one Vijayakumari Jayakumar, who is the 3rd respondent, First Information Report (FIR) was registered alleging commission of the above offences. 5. It is argued by the learned counsel for the petitioner that the defacto complainant in the present case is the 3rd accused in S.T. No.111/2016 on the files of Grama Nyayalaya Court, Kattappana arising out of Crime No. 09/2014 of Kattappana Police Station. As per Annexure A3 judgment dated31.05.2019, accused Nos.1 to 5 were found guilty for the offences punishable under Sections 143, 147, 447, 427 read with 149 of the Indian Penal Code and accordingly, they were convicted and sentenced. It is also submitted that this case was foisted without any substance after completion of trial in S.T.No.111/2016, anticipating conviction of all the accused therein, including the 3rd accused, who is the defacto complainant herein. Thus, case was falsely registered without any iota of truth and the same would require quashment, is the submission of the learned counsel for the petitioner. 6. The learned Public Prosecutor opposed the prayer for quashment, since the FIS would suggest materials to see commission of the offences alleged, prima facie. 7. I have perused the FIS given on 05.04.2019. The specific allegation is that the accused abused and threatened the defacto complainant, but no serious overt acts stated in theFIS. It is to be noted that in S.T. No.111/2016, which ended in conviction of the defacto complainant herein along with other accused was rendered on 31.05.2019 and before that, evidence was recorded in the said case where the father and relatives of the petitioner given evidence supporting the prosecution, which ended in punishing all the accused, including the defacto complainant herein. That apart, a civil suit also has been filed by the father of the petitioner as O.S. No.105/2014. That apart, a civil suit also has been filed by the father of the petitioner as O.S. No.105/2014. The 3rd respondent defacto complainant was the 7th defendant in the said suit. The said suit was decreed in favour of petitioner's father. 8. In the decision in Vineet Kumar & Ors. v. State of U.P & anr., reported in [2017 KHC 6274 : AIR 2017 SC 1884 : 2017 (13) SCC 369 ], the Apex Court held in paragraph 39 thatinherent power given to the High Court under Section 482 Crl.M.C. No.6063 of 2019 Cr.P.C is with the purpose and object of advancement of justice.In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories asillustratively enumerated by this Court in [ AIR 1960 SC 866 ], State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal (supra), which is to the following effect: “(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana v. Bhajan Lal(supra), but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. 9. Although, the High Court has noted the judgment of the State of Haryana v. Bhajan Lal(supra), but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. 9. Similarly, in another decision in Mahmood Ali v. State of U.P, reported in [2023 KHC 7029 : 2023 KHC OnLine 7029 : 2023 LiveLaw (SC) 613 : 2023 KLT OnLine 175 : AIR 2023 SC 3709 : AIR OnLine 2023 SC 602 : 2023 CriLJ 3896],the Apex Court while considering the power under Section 482Cr.P.C, in paragraph 12 held that whenever an accused comesbefore the Court invoking either the inherent powers under S.482 of the Code of Criminal Procedure or extraordinary jurisdiction under Art.226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complainant are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complainant alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under S.482 of the Cr.P.C. or Art.226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation / registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as allege1d.0. Therefore, the legal position is clear that quashment of criminal proceedings can be resorted to when the prosecution materials do not constitute materials to attract the offence alleged to be committed. Similarly, the Court owes a duty to look into the other attending circumstances, over and above the averments to see whether there are materials to indicate that a criminal proceeding is manifestly attended with mala fides and proceeding instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings. 10. Therefore, the legal position is clear that quashment of criminal proceedings can be resorted to when the prosecution materials do not constitute materials to attract the offence alleged to be committed. Similarly, the Court owes a duty to look into the other attending circumstances, over and above the averments to see whether there are materials to indicate that a criminal proceeding is manifestly attended with mala fides and proceeding instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings. 11. In the case at hand, crime was registered after recording evidence of the petitioner's father and relatives in S.T. No.111/2016, where the defacto complainant was the 3 rd accused. The above vital aspect would show that the present crime alleging minor overt acts got registered as part of retaliation, without bonafides. When cases are registered while criminal case/cases between the same parties are pending, at the option of the offender or relatives of the offender, the Courts owe a duty to have a glimpse of the materials available to make certain that the crime subsequently registered is in the form of a shield of retaliatory barricade. Viewing the genesis of the present crime in this context, it is discernible that this case was foisted as a retaliatory blockade to wreak vengeance in view of the earlier cases. Therefore, the quashment of prayer is liable to succeed. In the result, this Crl.M.C. stands allowed. Viewing the genesis of the present crime in this context, it is discernible that this case was foisted as a retaliatory blockade to wreak vengeance in view of the earlier cases. Therefore, the quashment of prayer is liable to succeed. In the result, this Crl.M.C. stands allowed. Annexures A1FIR and A2 Final Report in Crime No.256/2019 of Kattappana Police Station and all further proceedings thereof are here by quashed.