Kerala High Court
Shalvi Agustine vs State Of Kerala on 16 March, 2017
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938
Crl.MC.No. 1665 of 2017 ()
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(AGAINST THE ORDER/JUDGMENT IN CC 987/2015 of JUDICIAL FIRST CLASS
MAGIST. COURT, ANGAMALY(TEMPORARY)
CRIME NO. 650/2016 OF ANGAMALI POLICE STATION , ERNAKULAM)
PETITIONER(S)/ACCUSED:
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SHALVI AGUSTINE,
S/O.P.K.AUGUSTINE,
PATHANIKKATTU HOUSE,
KOTHAMANGALAM P.O.,
ERNAKULAM.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
RESPONDENT(S)/COMPLAINANT/STATE:
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STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
(CRIME NO.650/2016 OF ANGAMALY POLICE STATION
ERNAKULAM DISTRICT)
R BY PUBLIC PROSECUTOR C.N.PRABHAKARAN
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 1665 of 2017 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE I COPY OF THE F.I.R IN CRIME 650/2016 OF
ANGAMALY POLICE STATION
ANNEXURE -II CERTIFIED COPY OF THE FINAL REPORT IN CRIME
NO.650/2016
ANNEXURE -III COPY OF THE G.D.ENTRY
ANNEXURE - IV COPY OF THE TREATMENT RECORD
ANNEXURE - V COPY OF THE F.I.R IN 649/2016 OF ANGAMALY POLICE
STATION
RESPONDENT(S)' EXHIBITS
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/TRUE COPY/ PS TO JUDGE.
SUNIL THOMAS, J.
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Crl.M.C.No. 1665 of 2017
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Dated this the 16th day of March, 2017
O R D E R
The petitioner herein was working as the Civil Police Officer attached to the Angamaly police station. It is alleged that, on 29/3/2016 at 8.10. p.m., he was found smoking cigarette and under the influence of liquor, unable to control himself. When the defacto complainant called him, he did not respond to it. Consequently, crime was registered and he was arrested. He was taken to the nearby doctor and initial formalities followed. After investigation, final report was laid and the matter was taken cognizance as C.C.No.987/2016, for offences punishable under section 278 IPC and section 118 (a) of KP Act. This is assailed by the petitioner in the present Crl.M.C.
2. It is contended by the learned counsel for the petitioner that, the action was initiated against the petitioner due to previous animosity of the superior officer. It was also contended that, the case was set up to frame the petitioner herein in a false case. It was further contended that, the materials placed before the court below not only disprove the allegation raised, but also were contrary to the prosecution case.
Crl.M.C.No.1665/2017 2
3. Learned counsel for the petitioner contended that, as per Annexure-I FIR, the petitioner was intercepted on 29/3/2016 at 8.10 p.m. in front of the C.I office. The SHO, Angamaly Police Station has suo motu registered the crime. FIR is seen registered as Crime No.650/2016 on 29/3/2016 at 20.35 hours. The learned counsel relying on Annexure-III, which is a copy of the G.D.entry, contended that the corresponding entries are not available in the G.D. The learned counsel pointed out that, G.D entry of 29/3/2016 corresponding to 20 hours , indicate that the accused did not turn up for duty at the prescribed time. Thereafter, at 20.15 hours, the absence of the petitioner herein was reported to the CI of police. Learned counsel contended that, though the incident allegedly happened in the premise of the police station itself, GD entry does not indicate the registration of crime and other attending facts. On the other hand, the records are maintained as if the petitioner herein, who was in custody at that point of time, had not appeared for duty. This, according to the learned counsel, casts serious doubts on the allegations raised.
4.Learned counsel further relied on Annexure-IV medical prescription issued by an Ayurvedic Physician to show that, he was on medical treatment from 9/3/2016. Annexure-IV was pressed into service to show that the petitioner was on medical advise to take Crl.M.C.No.1665/2017 3 rest and hence could not have committed the acts alleged. Annexure-IV was also pressed into service to support his case that, even some of the medicines prescribed therein may possibly leave the smell of alcohol.
5. Yet another contention of the learned counsel for the petitioner was based on Annexure-V FIR. It related to Crime No. 649/2016 which was registered by the SHO, Angamaly police station in relation to an incident that happened at 6.45 p.m. on 29/3/2016 which was reported to the police at 8.59 hours on 30/10/2016. Relying on Annexure -I FIR in relation to the present case, and Annexure-V FIR, the learned counsel submitted that the case which was anterior in time was given a subsequent number and consequently, it cast serious doubt on the prosecution case. Prima facie, it is evident that the petitioner herein has been framed up, contended the learned counsel for the petitioner.
6. The learned counsel for the petitioner also placed before me a certificate of drunkenness dated 29/3/2016 issued by the doctor, who had an occasion to examine the petitioner. It showed that there was smell of alcohol, but there was no entry in the certificate to the effect that he was under the influence of alcohol or that he was unable to control himself. On this premise, learned counsel contended that offence under section 278 IPC is not legally Crl.M.C.No.1665/2017 4 sustainable.
7. Section 118 of KP Act presupposes either the accused, being under the influence of alcohol and in a quarrelsome mood or incapable of controlling himself. Evidently, there is no specific allegation that the petitioner was found to be in quarrelsome condition though vaguely it is referred that he was found in quarrelsome condition. However, there is a further allegation that, he was found unable to control himself. In the light of the above, it is a matter essentially to be established at the time of evidence.
8. Regarding Annexure-III GD entry, the discrepancies in the register, and how the crimes as evident from Annexures-I and V FIS happened and the reason for not making corresponding entries in the GD register are matters which can be explained cogently only by the person who had made necessary entries. Without such materials, any conclusion drawn on the basis of the documentary evidence may fall within the realm of the assumptions, which cannot be relied at this stage. Hence, though the petitioner herein is able to project some doubts regarding the prosecution case as such, there is no sufficient ground for quashing the proceedings at this stage.
Having regard to the above, I am not inclined to invoke the jurisdiction of this Court under section 482 Cr.P.C. Hence, Crl.M.C.No.1665/2017 5 Crl,M.C.is liable to be dismissed. Accordingly, Crl.M.C.is dismissed. However, this will not preclude the petitioner from raising all the above objections before the court below and attempting to establish that he is entitled for discharge. The petitioner herein will be entitled to rely on the above documents before the court below and the court may consider it, untrammelled by any of the comments made in this order, which is only for the purpose of considering whether sufficient ground for quashing the proceedings at this stage have been established.
Crl.M.C is dismissed with the above observations.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.