Kerala High Court
Prasanth P vs State Of Kerala on 2 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
SATURDAY, THE 2ND DAY OF NOVEMBER 2024 / 11TH
KARTHIKA, 1946
CRL.MC NO. 6027 OF 2024
CRIME NO.0359/2024 OF Thiruvambadi Police Station,
Kozhikode Rural
PETITIONERS/ACCUSED 1 & 2:
1 PRASANTH P., AGED 47 YEARS
S/O. SANKARAN LINEMAN, KERALA STATE
ELECTRICITY BOARD LIMITED (KSEB), ELECTRICAL
SECTION, THIRUVAMBADY, THIRUVAMBADY PO,
KOZHIKODE, PIN - 670783.
2 ANANTHU M.K., AGED 22 YEARS
S/O. SUDHI, ELECTRICITY WORKER (CONTRACT)
OFFICE OF THE ASSISTANT ENGINEER, KERALA
STATE ELECTRICITY BOARD LIMITED (KSEB),
ELECTRICAL SECTION, THIRUVAMBADY,
THIRUVAMBADY PO, KOZHIKODE, PIN - 670783.
BY ADVS.
M.U.VIJAYALAKSHMI
K.JAJU BABU (SR.)
BRIJESH MOHAN
T.S.ATHIRA
SACHIN RAMESH
AISHWARYA SATHEESAN
POOJA K.
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE STATION HOUSE OFFICER
THIRUVAMPADY POLICE STATION THIRUVAMBADY PO,
KOZHIKODE 670 783 THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682031.
2024:KER:81511
Crl.M.C.6027/2024
2 SMT.MARIAM U.C
W/O. RAZAK, ULLATTIL HOUSE, THIRUVAMPADY. THIRUVAMBADY
PO, KOZHIKODE, PIN - 670783.
BY ADVS.
R.SUDHISH
M.MANJU(K/003562/1999)
PUBLIC PROSECUTOR SRI M.P.PRASANTH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22.10.2024, THE COURT ON 02.11.2024 PASSED THE FOLLOWING:
2024:KER:81511
Crl.M.C.6027/2024
"C.R"
A. BADHARUDEEN, J.
================================
Crl.M.C.No.6027 of 2024
================================
Dated this the 2nd day of November, 2024
ORDER
This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (`BNSS' for short), seeking quashment of all further proceedings pursuant to Annexure F FIR arising out of Crime No.359/2024 of Thiruvambady Police Station, Kozhikode Rural. The petitioners are the 1 st and 2nd accused in the above crime.
2. Heard the learned counsel for the petitioners, the learned Public Prosecutor and the learned counsel appearing for the 2 nd respondent/defacto complainant. Perused the relevant documents.
3. Precisely spelt, the prosecution case is that at about 13.30 hours on 04.07.2024 when the accused herein, who are officials of the Kerala State Electricity Board (`KSEB' for short), reached the house of the defacto complainant to disconnect the electric supply on failure to pay electricity bill, the 1st accused abused the defacto complainant by using 2024:KER:81511 Crl.M.C.6027/2024 filthy language. The 2nd accused caught hold of the shoulder of the defacto complainant, pushed her and thereby she fell down and sustained injuries; and thus her modesty was outraged. The further allegation is that the accused removed the solar bulbs fitted on the compound wall of the defacto complainant's house. On this backdrop, prosecution alleges that the petitioners herein committed offences punishable under Sections 126(2), 115(2), 74, 296(b) r/w 3(5) of Bharatiya Nyaya Sanhita, 2023 (`BNS' for short).
4. The learned Senior Counsel Sri Jaju Babu, who appeared for the petitioners, vehemently argued that the entire case is false and foisted. It is submitted that initially Crime No.354/2024 of Thiruvambady Police Station was registered against one Ajmal and Shahadad, the children of the defacto complainant, based on the complaint lodged by the Assistant Executive Engineer, KSEB, Thiruvambady, alleging that accused 1 and 2 in that crime, who are none other than the children of the defacto complainant in the present crime, obstructed the duties of the KSEB officials when they reached the house of the defacto complainant herein, to disconnect the electric supply, for failure to pay electricity charges even 2024:KER:81511 Crl.M.C.6027/2024 after issuance of demand cum disconnection notice, alleging commission of offences punishable under Sections 351 and 132 of the BNSS. On account of the assault and attack by the sons of the defacto complainant in that case, connection could not be given and the matter was reported to the Assistant Engineer. On 05.07.2024 at about 12.45 p.m the sons of the defacto complainant in this case and others reached the KSEB office with a vessel full of water and food waste, threatening the officials that they would make sure that the employee, who effected disconnection, would consume the same. Ultimately at about 3 p.m, reconnection was given. At 4.50 pm on that day itself, Ajmal, who is the son of the defacto complainant in this case, made a threat to the effect that the Board officials would be jailed on a complaint by a woman. Again the sons of the defacto complainant herein poured waste water containing food waste over the Assistant Engineer and also caused damages to various electronic items as well as furniture in the office. On these allegations, Crime No.356 of 2024 of Thiruvambady Police Station was registered, alleging commission of offences punishable under Section 32(a) of the Prevention of Damage to Public Property Act, 1984 (`PDPP Act' for short) as well as under Sections 2024:KER:81511 Crl.M.C.6027/2024 329, 351, 121 and 132 read with 3(5) of the of the Bharatiya Suraksha Sanhita (`BNS' for short). In retaliation of the same, as an afterthought, after registration of Crime No.354/2024 at 20.14 hours on 05.07.202, the present FIR was registered at 17.29 hours on 07.07.2024 on baseless allegations by the defacto complainant, who did not even present at the place of occurrence. It is pointed out by the learned counsel for the petitioner that Crime No.359/2024 was registered on false plank without support of any material. Therefore, the entire case is baseless and the FIR is liable to be quashed.
5. The 2nd respondent/defacto complainant filed counter affidavit contending that in view of the earlier crime, the petitioners admitted their presence at the place of occurrence, at the time of occurrence, as alleged, and the same would corroborate the case of the 2 nd respondent. It is also pointed out by the learned counsel for the 2 nd respondent that currently the matter is under investigation and, therefore, quashment of FIR is unwarranted. It is also pointed out that the KSEB officials usually behave rudely and high-handedly towards consumers, especially, in matters involving disconnection of services and this 2024:KER:81511 Crl.M.C.6027/2024 occurrence stems from animosities harbored by the petitioners and certain KSEB employees towards the 2nd respondent. Thus the prima facie case is made out in this matter and in such a case quashment of FIR could not be considered.
6. The learned Public Prosecutor also supported the prosecution case, while admitting that initially Crime No.354/2024 was registered against the children of the defacto complainant in the present crime, when they (accused therein) manhandled the KSEB officials pursuant to disconnection of electric supply for non payment of electricity charges.
7. The question arises for consideration is; whether the present FIR, registered relying on the statement of the 2 nd respondent recorded at 16.14 hours on 07.09.2024, after registration of Crime No.354/2024 on 06.07.2024 based on the written complaint lodged by the Assistant Engineer, KSEB, Thiruvambady as on 05.07.2024 against the children of the defacto complainant herein, is sustainable? Perusal of the records would show that electricity supply vide Consumer No.15381 belongs to one Razack and he failed to pay the electricity charges due as 2024:KER:81511 Crl.M.C.6027/2024 on 02.07.2024, the last date for payment of the electricity charges. Since demand cum disconnection notice was issued earlier, at 12.00 hours on 04.07.2024, the electricity supply was disconnected for non payment of electricity charges. At 6:30 hours on 04.07.2024 the bill amount was paid through online mode and accordingly at 11 a.m on 05.07.2024 when Prasanth P and Ananthu A.K, the officials of KSEB, reached to reconnect electric supply, Ajmal and other identifiable persons abused and assaulted them. Further they threatened to kill them and they obstructed them from doing the official duty of the KSEB employees. Acting on the written complaint filed by the Assistant Engineer, KSEB, Thiruvambady, at 20.14 hours on 05.07.2024, FIR was registered against the children of the defacto complainant/2nd respondent. The present complaint was lodged only on 07.07.2024. As per the statement given by the 2nd respondent herein at 13.30 hours on 04.07.2024, Prasanth and Ananthau, the KSEB officials, reached the courtyard of her house and she came out on seeing them. When she asked about their purpose of arrival, they informed that they came for disconnecting electric supply for failure to pay electricity charges. According to the defacto complainant, they removed the solar 2024:KER:81511 Crl.M.C.6027/2024 light fixed on the compound wall of her house and Prasanth used abusive words against her, and Ananthu caught hold of her left shoulder and pushed her. She fell down on the cement floor and felt body pain. On 05.07.2024, the defacto complainant went to CHC, Mukkom; consulted Doctor and she had undergone treatment therefrom. On these sets of facts, the prosecution alleges commission of offences punishable under Section 126(2) of BNS - wrongful restraint; Section 115(1) - voluntarily causing hurt; Section 74 - assault or use of criminal force to woman with intent to outrage her modesty; Section 296(b) - use of obscene acts with annoyance to others with common intention, dealt under Section 3(5) of BNS. It is discernible that use of abusive words by Prasanth is the allegation which led to registration of crime alleging commission of offence under Section 296(b) of BNS. Coming to Section 126 of BNS, the only allegation is that the 2nd accused caught hold of the shoulder of the defacto complainant and pushed her down. There is nothing in the FIS to see any wrongful confinement. According to the defacto complainant, when the 2 nd respondent pushed her down she fell down on the floor, attracting Section 74 of BNS as alleged. In fact, the ingredients to attract offence under 2024:KER:81511 Crl.M.C.6027/2024 Section 74 of BNS alone not made out, prima facie.
8. The learned Public Prosecutor placed the report of the Investigating Officer stating the progress of the investigation. As per the report of the Investigating Officer, when investigation conducted to ensure the presence of the defacto complainant and accused at the place of occurrence at the relevant time, with the aid of their mobile phone location along with other records, it has been revealed that the defacto complainant and the accused were not present at the place of occurrence at the relevant time. It is also reported that the defacto complainant had animosity towards the employees of the KSEB since a crime was registered against her sons, and they were arrested and detained behind bars.
9. It is settled law that in an appropriate case, High Court can invoke power under Section 528 of the BNSS to quash the FIR itself if the FIR and the allegations thereon seem to be false and frivolous. It is pertinent to note that when case being registered, counter case also being introduced as a buckler to efface the case initially registered. Filing of counter cases with allegations moulded as an afterthought is not uncommon. When FIR registered on the basis of fake allegations and the 2024:KER:81511 Crl.M.C.6027/2024 same is perceivable, prima facie, from the available materials and attendant circumstances, the power under Section 528 of BNSS should be invoked.
10. Profitably, 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 that, inherent power given to the High Court under Section 482 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 as illustratively 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 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 2024:KER:81511 Crl.M.C.6027/2024 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."
11. 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 1751 : AIR 2023 SC 3709 : AIR OnLine 2023 SC 602 : 2023 CriLJ 3896], the Apex Court while considering the power under Section 482 Cr.P.C, in paragraph 12 held that, 'whenever an accused comes before 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 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 2024:KER:81511 Crl.M.C.6027/2024 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/complaint 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/complaint 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. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the 2024:KER:81511 Crl.M.C.6027/2024 registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.'
12. 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 fide intention and instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings.
13. Here as I have already pointed out, there was failure to pay electricity charges and consequential disconnection of electric supply, as per law. Pursuant to disconnection, electricity charges were paid through online mode and the officials reached the defacto complainant's house to reconnect the same. Then the officials were attacked, by the children of the defacto complainant herein, for which Crime No.354/2024 was registered and the children of the defacto complainant were arrested. As 2024:KER:81511 Crl.M.C.6027/2024 per Annexure H order, the learned Judicial First Class Magistrate, Thamarassery, dismissed the application for bail filed by them. Thus the present complaint was lodged on 04.07.2024, 3 days after the date of occurrence, pursuant to arrest of the defacto complainant's sons in the crime, earlier registered. Reading the allegations, it would adumbrate that the same are raised with a view to register a crime against the KSEB officials, as an afterthought, to wreak avengement. Here, the KSEB officials had done their official duties as per law and the children of the defacto complainant obstructed the officials while they were on duty, for which a crime was registered and the children of the defacto complainant were arrested and were declined bail. In such a case, the present crime, registered as an afterthought with the allegations narrated herein above, is only to be held as a retaliatory weapon used by the 2 nd respondent to wreak vengeance against the KSEB officials and the same lacks bona fides. This observation is fortified by the report of the Investigating Officer as well. Therefore, this is a fit case where this Court shall step into and exercise the power under Section 528 of BNSS to quash the FIR.
In the result, this Criminal Miscellaneous Case stands allowed.
2024:KER:81511 Crl.M.C.6027/2024 Annexure F FIR in Crime No.359/2024 of Thamarassery Police Station, Kozhikode District, and further proceedings thereof against the petitioners stand quashed.
Sd/-
A. BADHARUDEEN, JUDGE rtr/ 2024:KER:81511 Crl.M.C.6027/2024 APPENDIX OF CRL.MC 6027/2024 PETITIONERs' ANNEXURES Annexure A TRUE COPY OF THE COMPLAINT VIDE NO.DB12/22- 23/296/POLICE PROTECTION SUBMITTED BY THE SUB ENGINEER IN CHARGE ON 31.12.2022.
Annexure B TRUE COPY OF THE COMPLAINT VIDE NO.DB12/24-
25/50/POLICE PROTECTION GIVEN BY THE
ASSISTANT ENGINEER ELECTRICAL SECTION
THIRUVAMBADY (SRI.PRASANTH P.S) ON
05.07.2024.
Annexure C TRUE COPY OF THE FIR NO.0354 DATED 05.07.2024
REGISTERED BY THE THIRUVAMBADY POLICE
STATION, KOZHIKODE RURAL.
Annexure D TRUE COPY OF THE FIR.NO.0356 DATED 06.07.2024
REGISTERED BY THE THIRUVAMBADY POLICE AGAINST
M/S.U.AJIMAL AND U.SHAHADAD.
Annexure E CERTIFIED COPY OF THE STATEMENT GIVEN BY THE
2ND RESPONDENT ON 07.07.2024.
Annexure F CERTIFIED COPY OF THE FIR NO.0359 DATED
07.07.2024 REGISTERED BY THE THIRUVAMBADY
POLICE STATION BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-II, THAMARASSERY.
Annexure G COPY OF THE CERTIFICATE IN FAVOUR OF THE 1ST
PETITIONER ISSUED BY THE ASSISTANT ENGINEER
ON 12.07.2024.
Annexure H COPY ORDER DATED 11.07.2024 IN
CMP.NO.2103/2024 IN CRIME NO.356/2024 OF THE
THIRUVAMBADY POLICE STATION, PASSED BY THE
COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II
THAMARASSRY.
Annexure I TRUE COPY OF THE CERTIFICATE DATED 12.07.2024
ISSUED BY THE ASSISTANT ENGINEER, KSEB LTD TO
THE 1ST PETITIONER.