Penal Code, 1860 – S. 353, 332, 225(b), 294(b), 427 r/w S.34 – Motor Vehicles Act, 1988 – S.184 – Criminal P.C. 1973 – S. 482 – powers possessed by the High Court – routine vehicle checking by Police – police personnels were allegedly abused and assaulted by the petitioners – no independent person had witnessed the incident – incident had happened in public street and had occurred due to the fault on the part of the police officers in handling the situation with self restraint and in accordance with the circumstances – it would not be in the interest of justice to permit the prosecution against the petitioners to continue – all further proceedings against the petitioners quashed.
# IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V, J.
Crl.M.C.No.1694 of 2012
Dated this the 06th day of June, 2016
CC.NO. 1194/2006 OF ADDL.CHIEF JUDICIAL MAGISTARTE COURT, ERNAKULAM
PETITIONER(S)/ACCUSED NO.1 & 2
K.P. MADHU AND ANOTHER
BY ADV. SRI.P.T.DINESH
RESPONDENT(S)/COMPLAINANTS & STATE
1. V.S. NAWAS, SUB INSPECTOR OF POLICE (AS ON 13.4.2006), HILL PALACE POLICE STATION, TRIPUNITHURA, ERNAKULAM- 682 301.
2. RAMACHANDRAN M.U, HEAD CONSTABLE (AS ON 13.4.2006), HILL PALACE POLICE STATION, TRIPUNITHURA, ERNAKULAM -682 301.
3. BAIJU M., POLICE CONSTABLE (AS ON 13.4.2006), HILL PALACE POLICE STATION, TRIPUNITHURA, ERNAKLAM -682 301.
4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -31.
R4 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P.
O R D E R
1. The petitioners are the accused Nos.1 and 2 in C.C.No.705/2015 on the files of the Judicial First Class Magistrate Court, Thripunithura . This petition is filed under S.482 of the Code of Criminal Procedure with a prayer to quash all further proceedings in the aforesaid case on the ground that the institution of the criminal proceeding is manifestly attended with mala fides and to spite the petitioners.
2. A synoptic resume of the prosecution case, as is borne out from Annexure A 1 final report is as under :-
On 1.4.2006, at 12.35 p.m., while the respondents No 1 to 3 , who are police officers attached to the Hill Palace Police Station were checking vehicles , the 1 st petitioner came in Motor Cycle bearing registration No KL 7 BB 1624 in a rash and negligent manner with the 2 nd petitioner sitting on the pillion. The vehicle was intercepted by the respondents 1 to 3 and when the petitioners were asked to show the registration papers of the vehicle , the 1 st petitioner is alleged to have abused the 1 st respondent. It is further alleged that the petitioners had physically attacked the 1 st and 2 nd respondents and thereby committed the offences.
3. Immediately after the incident, the 1 st respondent who at that time was a Sub Inspector of Police , gave a statement before the Sub Inspector of Police, Hill Palace Police Station, based on which Crime No.220/2006 was registered for offence under S. 353, 332, 225(b), 294(b), 427 r/w S.34 of the IPC and under S.184 of the Motor Vehicles Act. After concluding the investigation , Annexure A1 final report was laid before the jurisdictional Magistrate.
4. The case was taken cognizance as C.C.No.1194/2006 by the Additional Chief Judicial Magistrate Court, Ernakulam. Later, the case was transferred to the Judicial First Class Magistrate Court, Thripunithura and the same is now pending as C.C.No.705/2015 on the files of the said Court.
5. I have heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor and also the learned counsel appearing for the 1st respondent.
6. The learned counsel launched a scathing attack on the registration of the Crime and the subsequent filing of the final report and submitted that events subsequent to the filing of the final report proved in unmistakable terms that the petitioners were falsely implicated to save the skin of the police officers. A different version of the very same incident is portrayed by the learned counsel relying on Annexures A9 to A 11. It is submitted that the 1 st petitioner is a lawyer practicing in the High Court and the 2 nd petitioner is a public servant working in the Economics and Statistics Department. According to the learned Counsel , the respondents 1 to 3 , are police officers and they had brutally assaulted the petitioners on that day and after having done that, they had abused the powers at their command to get a false crime registered against the petitioners.
7. The learned Counsel contended that immediately after the incident the first petitioner had filed complaints before the Government of Kerala, the Director General of Police, and several other authorities and the fact that police officers had abused their powers were pointed out. Based on this complaint, an enquiry was ordered by the Deputy Inspector General of police, Ernakulam range. Preliminary enquiry was conducted by Sri Anoop Kuruvila , an IPS officer. He had submitted Annexure A – 9 report where he had come to a conclusion that the incident had not occurred as it was made out to be. Thereafter, Sri M.B. Dileep, Asst Police Commissioner, DCRB, Kochi was appointed as the enquiry officer. Reference is made to Annexure A 10, memo of charges and also the enquiry report submitted by the said officer. The learned counsel pointed out that the enquiry officer after detailed questioning of witnesses, the police officials and the petitioners had come to the conclusion that the incident had happened in public street and had occurred due to the fault on the part of the police officers in handling the situation with self restraint and in accordance with the circumstances. The learned counsel also drew the attention of this court to Annexure A 11 as per which the Deputy Inspector General of police, Ernakulam range awarded the punishment of censure on the first respondent.
8. According the learned counsel the preliminary enquiry conducted by an IPS officer and also the subsequent enquiry report submitted by the Assistant Police Commissioner revealed that the allegation of the prosecution in the final report that the petitioners had abused respondents 1 to 3 and had assaulted them on 13/04/2006 is nothing but a cooked up case. The learned counsel also referred to Annexure A 12 opinion of the Additional Law Secretary, wherein on the basis of materials it was concluded , that the allegations levelled against the police personnel cannot be said to be false of baseless.
9. It is also pointed out by the learned counsel referring to Annexure A1 final report and Annexure A 2 FIR , that the place of incident was shifted in order to make it appear that the incident had happened in a different place at different time. Inviting the attention of this court to the delay in questioning the eye witnesses it is pointed out that the witnesses cited are all planted.
10. Finally it is contended that the allegations and the final report are absurd and inherently improbable in view of the enquiry report submitted before the authorities by highranking police officials who had conducted an impartial enquiry into the matter. In the face of the enquiry reports no prudent person can come to the conclusion that there are any sufficient grounds for proceeding against the petitioners herein is in essence the submission of the learned Counsel.
11. The learned counsel appearing for the respondent 1 to 3 would submit that at the instance of the 1 st petitioner herein, criminal prosecution was instituted as against them and later, the proceedings were quashed on the ground that no sanction was obtained. According to the learned counsel, prima facie allegations are there in the final report and there is no reason to exercise the powers under S.482 of the Cr.P.C. to bring the proceedings to a termination.
12. I have anxiously considered the rival submissions and have gone through the materials on record. The prosecution allegations revolves around an incident which occurred on 13.4.2006 , when the respondents 1 to 3 , who are police personnel, were allegedly abused and assaulted by the petitioners when the motor bike in which they were traveling was intercepted by the police party for routine vehicle checking. Annexure 1 Final report submitted by the Hill Palace Police Station would reveal that an investigation was conducted by the Sub Inspector of Police , and he found the allegations in Annexure 2 FIR to be true . The Final Report is dated 29.4.2006 .
13. This case is unusual in the sense , that , it is on record that on the basis of the complaint filed by the 1st petitioner the Deputy Inspector General of Police had ordered an Inquiry to be conducted by Sri Anoop Kuruvila IPS , who was then the Station House Officer of the Muvattupuzha Police Station. Annexure A 9 is the enquiry report submitted by the said officer, which is dated 2.5.2006. More pertinently , the report has been submitted immediately after the submission of the Final Report.
14. Annexure A 9 would reveal that no independent person had witnessed the incident. The said officer concludes that the incident commenced as an ordinary exchange of words, which escalated into a scuffle, which further aggravated itself by the registration of crime case and later on by the fact that it went to the media and got undue publicity.
15. Annexure A 10 is the charge memo and the enquiry report of M.B. Dileep, Assistant Police Commissioner , DCRB, Kochi City. This report would show Annexure 1 Final Report in bad light. The enquiry report reveals that several witnesses were questioned and the prosecution records as well as that the medical records were perused by the Assistant Commissioner. He concludes that on 13/04/2006 at about 12:30 PM while respondents 1 to 3 were engaged in the routine checking of vehicles, the petitioners had come on a motorcycle and they were intercepted. When the records of the vehicle where asked for by the first respondent, the first petitioner informed them that he had not received the registration certificate and other papers from the Regional Transport Office. It is also revealed that the first petitioner had spoken in a manner unbecoming of a police officer towards the petitioners and when the first petitioner informed them that he was a lawyer, an altercation ensued. The first petitioner, at that point of time , attempted to make a phone call using his mobile phone and the first respondent attempted to snatch the mobile phone from this position. There resulted in a scuffle and in the course of which the dhoti worn by the first petitioner had come off. This according to the Senior Officer, was what had happened on the day of incident. While concluding the enquiry report the Assistant Commissioner of police has found that there were serial lapses on the part of the respondents 1 to 3. It was also found that the allegations in the charge memo was clearly made out against the respondents 1 to 3.
16. Based on the enquiry report Annexure A 11 order was passed by the Deputy Inspector General of Police, Ernakulam range on 27/06/2007 proposing punishment of censure on the first respondent. It appears that the said order has become final.
17. In view of the conclusions arrived at by Senior and Highranking police officials in respect of the same incident , It cannot be said that the allegations in Annexure 1 Final Report is a true version of the incident. Both the versions contradict one another. As held by the learned counsel appearing for the petitioners, when it is borne out from the records which are admitted ones , is that the prosecution initiated against the petitioners is manifestly attended with mala fides. It is also obvious that Annexure A1 final report was laid as a counter blast to the complaint filed by the petitioners which was dismissed for want of sanction.
18. W.P.C.No.30297/2011 has been filed by the petitioners herein challenging the refusal of sanction to prosecute the respondents 1 to 3. In the course of argument, the learned counsel appearing for the petitioners submits that he does not intend to pursue with the prayers in the said writ petition.
19. It is by now settled that the wholesome power under S.482 of the Code entitles this Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice requires that the proceedings ought to be quashed. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In
# Madhu Limaye v. The State of Maharashtra, AIR 1978 SC 47
a Three – Judge Bench of the Apex Court had held the High Court will be justified in quashing the proceedings which has been initiated illegally and vexatiously.
# Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others, 1998 (5) SCC 749
the Apex Court in Para.No.28 of the judgment has held thus:
“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
21. This Court is clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under S.482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. I have anxiously considered the materials on record and also the contentions raised by the opposing side I have also taken note of the special features of the case. I am of the firm view that it would not be in the interest of justice to permit the prosecution against the petitioners to continue.
22. In the result , this petition is allowed and all further proceedings against the petitioners in C.C.No.705/2015 on the files of the Judicial First Class Magistrate Court, Thripunithura shall stand quashed.