Kerala High Court
Harshad @ Kunjutty vs The State Of Kerala on 22 July, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 22ND DAY OF JULY 2014/31ST ASHADHA, 1936
Crl.MC.No. 1531 of 2014
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CRIME NO. 200/2014 OF VALANCHERY POLICE STATION , MALAPPURAM
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PETITIONER(S)/ACCUSED NO.1:
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HARSHAD @ KUNJUTTY, AGED 23 YEARS,
S/O.MOIDU, KUNDANIYIL HOUSE, P.O.VALANCHERRY,
MUCHIKAL, TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADVS.SRI.A.JAYASANKAR
SRI.C.V.MANUVILSAN
SRI.MANU GOVIND
RESPONDENTS/DEFACTO COMPLAINANT:
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1. THE STATE OF KERALA,
REPRESENTED BY THE SUB-INSPECTOR OF POLICE,
VALANCHERRY POLICE STATION,
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
2. SRI.MOHAMMED SHAFI, AGED 312 YEARS,
S/O.SAIDALAVI, NAYAMKOTTIL HOUSE, KURUMBATHOOR,
TIRUR TALUK, MALAPPURAM DISTRICT - 676 301.
R2 BY ADV. SRI.SUNIL NAIR PALAKKAT
R1 BY PUBLIC PROSECUTOR SMT.P.MAYA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 22-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
Crl.MC.No. 1531 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE A1: ATRUE COPY OF THE FIR IN CRIME NO.200/2014 OF VALANCHERRY
POLICE STATION, MALAPPURAM.
ANNEXURE A2: THE NOTARY ATTESTED AFFIDAVIT SOLEMNLY AFFIRMED BY THE
2ND RESPONDENT AS HE HAS NO GRIEVANCE AGAINST THIS
PETITIONER.
RESPONDENT(S)' ANNEXURES
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K. RAMAKRISHNAN, J.
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Crl.M.C.No.1531 of 2014
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Dated this the 22nd day of July, 2014.
"CR"
O R D E R
This Criminal Miscellaneous Case is filed by the first accused in Crime No.200/2014 of Valancherry police station to quash the proceedings on the basis of settlement under Section 482 of the Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner has been arrayed as the first accused in Crime No.200/2014 of Valancherry police station alleging offences under Sections 323, 341, 342 and 506(i) read with Section 34 of the Indian Penal Code. According to the petitioner, he is absolutely innocent and he has never committed any offence and there was no overt act alleged against him as well. The defacto complainant has no grievance against the petitioner also. The defacto complainant now realised the innocence of the petitioner and he has filed an affidavit stating these facts as well. According to him, the petitioner has been falsely implicated in the case by mistaken identity. So, allowing the case to continue is of no use. As it is at the crime stage, neither the court below nor the police will drop the proceedings. So the petitioner has Crl.M.C.No.1531 of 2014 2 no other remedy except to approach this Court seeking the following reliefs:
i. Quash Annexure A1 and all further
proceedings against the petitioner in
Cr.No.200/2014 of the Valancherry police station, to secure ends of justice and also to prevent abuse of process of the Court.
ii. Pass such any other order, direction of reliefs as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience.
3. The second respondent appeared through counsel and submitted that he has no grievance against the petitioner and he has given the petitioner's name by mistaken identity. Now he has realized the fact and he has filed an affidavit also stating these facts.
4. The counsel for the petitioner submitted that considering the fact that the defacto complainant has now realized the fact that the petitioner is not the person involved in the crime and he has come before this Court and sworn an affidavit to that effect, no purpose will be served by proceeding with the case against the petitioner. Since the power under 482 of the Code Crl.M.C.No.1531 of 2014 3 is so wider to meet the ends of justice and to avoid abuse of process of court, that will have to be invoked in favour of the petitioner in this case is the submission made by the counsel for the petitioner.
5. The learned Public Prosecutor, as directed by this Court, after getting instructions, filed statement of the Assistant Sub Inspector of Police, Valancherry regarding the antecedents and pendency of other cases in respect of the petitioner which reads as follows:
"1. Brief of the case is that on 18.2.14 at about 18.00 hrs. the petitioner and 4 others wrongfully restrained the complainant one Mohammed Shafi, S/o. Saidalavi, Nayamkottil House, Kattamkunnu, Kurumbathore Post while he was traveling by a car at Athavanad Parithi and wrongfully confined him in an Innova car bearing Reg.No.KL11-AG 3295 and voluntary caused hurt and threatened he would be attacked by trespassing into home.
2. The complainant reached the Police Station at 22.50 hrs and gave a written complaint to the Sub Inspector of Police, N.C. Mohanan and a case w as registered as Cr.No.200/14 u/s 323,341,342,506 Crl.M.C.No.1531 of 2014 4
(i) r/w 34 IPC.
3. I, M.K. Mohanan, Assistant Sub Inspector of Police, Valanchery started he investigation of the case and prepared scene mahazer and questioned the eye witnesses and others and also enquired the accused persons. My investigation, it is found that the accused person Harshad @ Kunhutty is a habitual offender, permanent criminal, he used his vehicles for illegal river sand mining and several cases of Kerala Protection of river bank and Regulation of River Sand Act were pending against him. It is submitted that Cr.No.18/11 u/s 352, 506
(ii) r/w 34 IPC (2) Cr.No.219/12 u/s 308 IPC (3) Cr.No.192/14 u/s 341, 353, 506(ii) IPC are pending against accused and his brothers for attacking police persons.
4. Due to the previous enmity in connection with Crime No.192/14, petitioner herein and others attacked 2nd respondent herein and thereby Crime 200/14 was registered.
The accused person, the petitioner and his brother Kunhani, Mujeeb and Manu are the accused persons in the above said crime and there are several cases registered under the provisions of Kerala Protection of River Bank and Regulation of River Sand Act. They are threat to the lives of Crl.M.C.No.1531 of 2014 5 police persons. In the above circumstances, Crl.M.C.No.1531/14 is devoid of any merit and the same is liable to be dismissed."
6. The learned Public Prosecutor on the basis of the statement of the investigating officer submitted that in view of the fact that the petitioner is having criminal background and the investigation is in the preliminary stage, it is not a fit case to quash the proceedings at this stage.
7. It is an admitted fact that on the basis of the statement given by the defacto complainant, namely the second respondent, Annexure-A1 First Information Report was registered as Crime No.200/2014 of Valanchery police station against the petitioner and other 5 unidentified persons alleging offences under Sections 323, 341, 342, 506(1) read with Section 34 of the Indian Penal Code. The investigation is in the preliminary stage. Further it is seen from the statement of the investigating officer that it is a written complaint given by the 2nd respondent in which the name of petitioner was specifically mentioned. It is true that now the defacto complainant had filed Annexure-A2 Notary attested affidavit stating that the matter has been settled between the parties and he has sworn to an affidavit to the effect that the accused Crl.M.C.No.1531 of 2014 6 shown in the First Information Report are innocent persons and they have not committed any offence and it is also mentioned in the affidavit that he is filing the affidavit not to help any one. But on going through the submission of the Sub Inspector of Police, it is seen that the present petitioner is accused in several cases and number of cases are pending before the court also for trial after investigation. It is settled law that the court should always be slow in interfering with normal course of investigation and quash the crime at the initial stage itself, unless the court is satisfied on the basis of the allegations in the complaint or the statement, no offence has been made out. In this case, on going through the allegations in the First Information Statement which has been signed by the second respondent, it cannot be said at this stage that the offences alleged were not committed and the petitioner has not involved. Further investigation is in the preliminary stage. The other accused persons are yet to be identified as well. The complainant had no case that no incident had happened. So, it is for the investigating agency to continue with the investigation and find out the persons, who have involved in the crime and bring them before the court to be dealt with Crl.M.C.No.1531 of 2014 7 them in accordance with law.
9. Even if he has filed an affidavit before this Court and if the court feels that, that will not end the litigation as such, further probe if required to find out the truth in the incident, then the investigation has to continue and the court cannot invoke the power under Section 482 of the Code and quash the proceedings. So the dictum laid down in the decision reported in Madhavrao Jiwaji Rao Scindia and Another v. Sambhbajirao Chadrojirao Angre and Others (1988 KHC
914) is not applicable to the facts of this case. Even in that case, the Hon'ble Supreme Court has held that power under Section 482 to quash the proceedings at the threshold can be used only sparingly and only if court is satisfied with its requirement to meet the ends of justice.
10. Further in the decision reported in Gian Singh v. State of Punjab [2012 (4) KLT 108(SC)] and also in the decision reported in Narinder Singh & Others v. State of Punjab and Another (2014 (4) SCALE 195), the Hon'ble Supreme Court has held that even in certain cases where public interest is involved and it cannot be said to be an offence against an individual, but against the society as such, this Crl.M.C.No.1531 of 2014 8 Court must be slow to quash the proceedings invoking the power under Section 482 of the Code even if the victim had come before this Court stating that he/she had no grievance as the matter is settled and it can be quashed. Further in the above decision, the Hon'ble Supreme Court has given guidelines as to which type of cases are fit for quashing and they were normally relating to family disputes, dispute between relatives, neighbours, most of civil nature and where the personal or business relationship are involved and settlement is to promote that relationship and not all type of cases. Further, in this case it is seen that it cannot be said to be a dispute between the two individuals alone considering the criminal antecedents of the petitioner against whom number of crimes have been registered and still he is facing the prosecution in those cases. Further this Court is of the view that in cases where habitual criminals are involved in commission of the crime against whom other crimes are also pending and facing prosecution, invoking the power under Section 482 of the Code, if the case is quashed at the initial stage itself that will give a wrong message to the society and that will in fact affect maintenance of law and order itself as Crl.M.C.No.1531 of 2014 9 tendency to commit crime will increase in the society. Public interest also must be taken into account by the courts while considering the application for quashing the proceedings at the initial stage on the ground of settlement by invoking the power under Section 482 of the Code. So under the circumstances, this Court feels that it is not a fit case where power under Section 482 has to be invoked to quash the proceedings at the initial stage itself merely on the basis that the defacto complainant had filed an affidavit stating that the matter has been settled and he does not want to prosecute the petitioner as his name has been given by mistake. So, the petitioner is not entitled to get the relief claimed in the petition.
In the result, this petition is dismissed Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge Crl.M.C.No.1531 of 2014 10