Kerala High Court
Dr.Vasanthi Devi vs State Of Kerala
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2014/30TH MAGHA, 1935
Crl.MC.No. 996 of 2013
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CMP NO. 168/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II,
THIRUVANANTHAPURAM
...
CRIME NO.100/2008 OF PEROORKADA POLICE STATION
....
PETITIONER(S)/ACCUSED 1 & 2:
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1. DR.VASANTHI DEVI,AGED 63 YEARS,
W/O. LATE P.R. DEVANATHAN NAIR,
T.C 8/1361 (1) VASANTHAM VEEDU, ARAYALLOR, THIRUMALA,
THIRUVANANTHAPURAM.
2. DR. RASHMI KRISHNAKUMAR, AGED 41 YEARS,
D/O. DR. VASANTHI DEVI,
T.C 8/1361 (1) VASANTHAM VEEDU, ARAYALLOR, THIRUMALA,
THIRUVANANTHAPURAM.
BY ADVS.DR.VINCENT PANIKULANGARA
MR.V.S CHANDRASEKHARAN
MR.M.V DAS
SMT.PRINCY XAVIER
SMT. LEKSHMI SWAMINATHAN
RESPONDENT(S)/COMPLAINANTS:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM COCHIN-682 031.
2. BALACHANDRAN,
S/O. KUTTAN PANICKER,*( 'ISHWARAYA', RAMAPURAM,
NCC ROAD, PEROORKADA, KUDAPPANAKKUNNU VILLAGE,
THIRUVANANTHAPURAM-695 013) - ADDRESS CORRECTED:
*ADDRESS OF R2 SHOWN IN CRL.M.C.996/13 CORRECTED AS
T.C.NO.43/646/1, KEDARAM HOUSE, VALIYAVEEDU LANE,
KAMALESWARAM, MANAKKAUD PO, THIRUVANANTHAPURAM
AS PER ORDER DATED 11/06/2013 IN CRL.,M.A.NO.4712/2013.
R1 BY PUBLIC PROSECUTOR SRI.N.SURESH
R2 BY ADVS. SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
SRI.MANU V.
SRI.GOVIND PADMANAABHAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 19-02-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
Crl.M.C.No.996/2013
APPENDIX
PETITIONER'S ANNEXURES:
ANX.A1 CERTIFIED COPY OF THE CMP NO. 848/2008 FILED BY THE 2ND
RESPONDENT ON 13-13-2008.
ANX.A2 TRUE COPY OF FIR DT. 29-3-2008 ION CRIME 100/2008 OF
PEROORKADA PS.
ANX.A3 CERTIFIED COPY OF FINAL REPORT DT. 28-8-2009 IN CRIME 100/2008
OF PEROORKADA PS.
ANX.A4 TRUE COPY OF THE CHARGE SHEET DT. 28-8-2008 IN CRIME NO.
100/2008 OF PEROORKADA PS.
ANX.A5 TRUE COPY OF THE 1ST RESPONDENT REPRESENTATION
DT. 19-2-2009 TO CITY COMMISSIONER OF POLICE.
ANX.A6 TRUE COPY OF THE RELEVANT ENTRIES IN THE 2ND PETITIONERS
INDIAN PASSPORT NO. F 4481771.
ANX.A7 TRUE COPY OF DEPUTY COMMISSIONER'S ORDER NO. D1/9990/09/TC
DT. 2-3-2009.
EXT.PA8 CERTIFIED COPY OF THE REFER CHARGE DT. 3-12-2009 IN CRIME NO.
100/2008 OF PEROORKADA PS.
ANX.A9 CERTIFIED COPY OF PROTEST COMPLAINT CMP NO. 168/2010
DT. 28-6-2010 FILED BY THE 2ND RESPONDENT.
ANX.A10 CERTIFIED COPY OF ORDER SHEET IN C.C. 753/2008.
ANX.A11 TRUE COPY OF ORDER SHEET IN CMP 2168/2010.
ANX.A12 TRUE COPY OF THE ORDER DT. 11-6-2009 IN CR.M.C. NO. 799/2009 OF
THE HIGH COURT OF KERALA.
RESPONDENTS' ANNEXURES: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
K. Ramakrishnan, J.
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Crl.M.C.No. 996 of 2013
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Dated this, the 19th day of February, 2014.
O R D E R
This is an application filed by the petitioner to quash the proceedings under Section 482 of Code of Criminal Procedure.
2. Petitioners are mother and daughter, who are accused Nos.1 and 2 in Crime No.100/2008 of Peroorkada Police Station which is now pending before Judicial First Class Magistrate Court No-II, Thiruvananthapuram, as C.C.No.753/08. On 13.03.2008, the second respondent filed the C.M.P.No.848/08 under Section 190 and 200 of Code of Criminal Procedure against the petitioners and others. Based on the court orders, police registered Crime No.100/08 of Peroorkada Police Station and registered a crime alleging offences under Sections.143, 147,148, 149, 447, 427 and 506
(ii) of Indian Penal Code. After investigation, final report was filed on 28.08.2009 only for the offences under Sections. 447, 427 and Section 34 of Indian Penal Code. Second petitioner is residing and working in Kenya and on getting summons she left Nairobi on 14.11.2007 and arrived to United Arab Emirates on 15.11.2007 and left UAE on 18.11.2007 and she came to Crl.M.C.No. 996 of 2013 : 2 : India on 19.11.2007. On the basis of the representation made by the first petitioner to the Commissioner of Police, the police re-investigated the case and filed Refer Charge report on 04.12.2009 stating that on the date of alleged occurrence, the second petitioner was not in India and she was in UAE and there was no incident as mentioned in the complaint occurred except a wordy altercation and the dispute is of civil nature. On 20.01.2010, the Refer Charge was considered. On 28.06.2010, the second respondent filed C.M.P.168/10 as Protest Complaint stating that the second petitioner was included in the complaint by mistake. However, on 01.12.2010, summons and on 14.06.2014 non-bailable warrant were issued against the petitioners. Petitioners are on bail now and they are directed to appear in court on 11.03.2013. It was only a harassment of two women by an influential officer of the Government to settle a boundary dispute to his advantage by pressurizing the petitioners. So, they have no other option but to file the application seeking following relief:
"i) To quash Annexure A-4 Charge Sheet in C.C.No.753/2008 in Crime No.100/2008 in Peroorkada Police Station before Judicial First Class Magistrate Court No-II, Crl.M.C.No. 996 of 2013 : 3 : Thiruvananthapuram and discharge the petitioners."
3. The Second respondent appeared through Counsel and submitted that even in the protest complaint, it was mentioned that the name of the second petitioner was included in the first complaint by mistake and he has no objection in quashing the proceedings against the second petitioner.
4. I have earlier called for a report from Judicial First Class Magistrate No-II, Thiruvananthapuram and the learned magistrate sent a report dated 02.03.2013 which reads as follows:
"C.C.753/08 was taken to file based on the final report filed by Sub Inspector of Police Peroorkada P.S., alleging that the accused, 3 in number viz 1. Dr.Vasanthi Devi, 2. Dr.Reshmi Krishnakumar and 3. Rahim in furtherance of their common intention committed the offences punishable u/s 447 and 427 r/w 34 IPC. In this case CW1 was examined in part as PW1 and Exbt P1 was marked on 18.06.2012. Further examination of PW1 was adjourned since it was brought to my notice that another CMP No.168/10 was pending before court on the same set of facts wherein the accused are 1. Vasanthi. 2. Rajani and
3. Rahim in which the sworn statement of complainant (ie CW1 in CC.753/08) was recorded on 18.7.2011.
I may further report that PW1 in CC.753/08 was not further examined since I felt that it might be expedient in the interest of justice to hear the learned counsel appearing on both sides regarding the steps to be taken in the conduct of proceedings in the two cases.
Crl.M.C.No. 996 of 2013 : 4 :
I am also enclosing herewith copies of the deposition of PW1 in CC.753/08 and the sworn statement of the complainant (ie PW1 in CC.753/08) in CMP.168/10 for kind perusal."
5. Thereafter, a further report was called for regarding the action taken in respect of the refer report filed for which the learned magistrate had sent a further report dated 10.12.2013 which reads as follows:
"The Sub Inspector of Police, Peroorkada Police Station filed Final report in crime 100/08 of Peroorkada police station against the accused namely 1. Dr.Vasanthi Devi, 2. Dr.Rashmi Krishnakumar and 3. Rahim alleging that the accused committed the offences punishable u/ss 447, and 427 r/w 34 IPC and the case was taken to file as CC.753/08. A perusal of the proceedings paper shows the following:-
On 4.3.2009, this court ordered further investigation of the case. On 8.12.2009 the Assistant Commissioner of Police, Contonment Sub Division, Thiruvananthapuram city filed Refer Report stating that the case is of civil nature. Subsequently on 20.1.2010, notice was issued to defacto complainant. On 22.1.2010 the defacto complainant filed protest complaint as CMP.168/10 against 1. Vasanthi, 2. Rajani and 3. Rahim.
The proceeding paper of CC.753/08 further shows that on 01.12.2010, accused were absent and so summons was ordered to all accused and on 18.2.11, NBW was ordered against accused No.2 and the case was posted to 14.6.11. No order either rejecting or accepting the refer report is noted on the proceedings paper.
While so, I took charge on 23.5.11. Since the filing of the Refer Report has not been brought to my notice by either side, particulars of offences were read over and explained to accused No.1 & 2 on 19.9.11 to which they pleaded not guilty. On Crl.M.C.No. 996 of 2013 : 5 : 24.10.11, Particulars of offences were read over and explained to A3 to which he also pleaded not guilty and processes were issued to CW1 to 4. On 18.6.12, CW1- Balachandran (Respondent No.2 in Crl.MC.996/13 before the Hon'ble High Court) was examined in chief in part as PW1. It was at this time, the pendency of CMP 168/10 (private/protest complaint filed by CW1), was brought to my notice and so the case was adjourned for verification of case records of CMP 168/10.
On verification of the case records of CMP 168/10 it is found that I had recorded the sworn statement of the complainant well back on 18.7.11. No other witnesses was examined in CMP.168/10.
While So, this court received the order of Hon'ble High court in Crl.MA 1858/13 in Crl.MC.996/13. whereby further proceedings against accused No.1 & 2 in CC.753/08 were stayed.
I may further submit that in the light of the order of stay no further proceedings were taken in CMP.168/10 also."
6. On going through the report of the presiding officer and also considering the submissions made by the Counsel for the petitioners and the second respondent, one thing is clear that second petitioner was not in India as on the date of alleged commission of the offence and it was specifically admitted by the second respondent in the protest complaint that her name was included in the first complaint by mistake and in the second complaint, the correct person namely Rajani Krishnakumar was shown as second accused. So, considering Crl.M.C.No. 996 of 2013 : 6 : the circumstances, I feel that there is no necessity to proceed against the second petitioner as she need not be arrayed as accused at all in the circumstances of the case. So, the case against the second petitioner who was shown as second accused in C.C.No.753/08 is quashed as against her.
7. As regards the other submissions are concerned, it is seen from the report that earlier on the basis of a private complaint filed by the second respondent, the complaint was forwarded to the Peroorkada police for investigation under Section 156(3) of Code of Criminal Procedure and on that basis Crime No.100/08 was registered originally alleging offences under Sections 143, 147, 148, 149, 447, 427, 506(ii) of Indian Penal Code and after investigation, the investigating officer filed final report against 3 persons alone alleging offences under Sections 447 & 427 read with Section 34 of Indian Penal Code which was taken on file as C.C.No.753/08 by the learned magistrate. Thereafter, on the basis of the representation made by the first petitioner before the Commissioner of Police, re-investigation was ordered and subsequently Refer Report was filed stating that second petitioner was not in India at that time and no incident happened as alleged in the original complaint and it is a case of civil nature. On receipt of that Crl.M.C.No. 996 of 2013 : 7 : Refer Report, refer notice has been issued to the second respondent and on receipt of the same, the second respondent filed the present protest complaint as C.M.P.No.168/10 against first petitioner and one Rajani and Rahim. But, it is seen from the records that no specific orders have been passed by the magistrate either accepting or rejecting or decided to proceed further on the basis of the first complaint itself as required under law. Further, in the decision reported in Dharmatma Singh Vs. Harminder Singh 2011(2) KLT SN 110 (Case No.132), the Honourable Supreme Court has held that if police has filed earlier report under Section 173(2) of Code of Criminal Procedure and case was taken on that basis and thereafter, a further investigation was ordered and Refer Report was filed as provided under Section 173(8) of Code of Criminal Procedure, then, it is for the magistrate to consider the materials and form an opinion as to whether on going through the materials collected on both any offence has been made out and decide as to whether he will have to accept the second Refer Report or proceed with the complaint. But, in this case such an exercise was not seen done by the magistrate. However, on receipt of the refer notice, the second respondent has filed a protest complaint as Crl.M.C.No. 996 of 2013 : 8 : C.M.P.No.168/10 and sworn statement was recorded and no other witnesses were examined as by the time the further proceedings were stayed by this court in this petition. So, considering the circumstances, I feel that the present petition can be disposed of by directing the magistrate to consider the refer report and also the protest complaint filed and dispose of the same in accordance with law.
8. So, the petition is disposed of as follows:
1. The proceedings as against second petitioner who was shown as second accused in C.C.No.753/08 on the file of the Judicial First Class Magistrate Court No-II, Thiruvananthapuram is quashed. As regards the refer report filed under Section.173(8) and protest complaint filed by the second respondent as C.M.P.No.168/10, the learned magistrate is directed to dispose of the same as directed in the decision reported in Dharmatma Singh Vs. Harminder Singh (2011 (2) KLT SN 110) (Case No.132) by the Honourable Supreme Court.
With the above direction and observation, the petition is disposed of.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge