Kerala High Court
Isac John vs State Of Kerala on 7 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943
CRL.MC NO. 7996 OF 2017
CRIME NO.882/2014 OF Museum Police Station, Thiruvananthapuram
CC 355/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -
III,THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
1 ISAC JOHN
S/O LATE. K.U JOHN, FORMERLY EXECUTIVE DIRECTOR,
M/S SOCIO ECONOMIC UNIT FOUNDATION,
PMRA-A-8, T.C.17/652 NEAR MILMA BHAVAN,
PATTOM PALACE P.O. THIRUVANANTHAPURAM.695004,
FORMERLY RESIDING AT KOLLAMPARAMBIL HOUSE,
JYOTHI NAGAR, EAST HILL, KOZHIKODE-673003 AND NOW
RESIDING AT 3C, CHOICE HEIGHTS, BAINS COMPOUND,
NANTHANCODE, THIRUVANANTHAPURAM.3
2 MRS. SUMA MATHEW
D/O ANNAAMMA MATHEW, MALAYIL HOUSE,HOUSE NO.272,
BHAVANA NAGAR, KOLLAM TOWN WARD,KOLLAM VILLAGE,
KOLLAM DISTRICT, PRESENTLY WORKING AS EXECUTIVE
DIRECTOR, M/S SOCIO ECONOMIC UNIT FOUNDATION,
PMRA-A-8, T.C.17/652, NEAR MILMA BHAVAN,
PATTOM PALACE PO, THIRUVANANTHAPURAM.695004
BY ADVS.
SRI.V.AJAKUMAR
SRI.T.M.CHANDRAN
SRI.SIDHARTH A.MENON
RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
CRL.MC NO. 7996 OF 2017
2
2 BINDU K.B
D/O KADAMBARI AMMA, AGED 45 YEARS,
RESIDING AT SOWBHAGYA, HOUSE NO.23A,
ALTHARA NAGAR, VAZHUTHACADU,
SASTHAMANGALAM VILLAGE,
THIRUVANANTHAPURAM.695010
BY ADV
SRI.D.KISHORE
SRI.G.SUDHEER GOPALAKRISHANA, PUBLIC PROSECUTOR.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 08.12.2021, THE COURT ON 07.01.2022 PASSED THE FOLLOWING:
CRL.MC NO. 7996 OF 2017
3
ORDER
The petitioners are accused Nos.1 and 2 in CC No.355/2016 on the file of the Judicial First Class Magistrate Court III, Thiruvananthapuram. The offences alleged against the petitioners are under Section 341, 354, 506(i) read with Section 34 of Indian Penal Code.
2. Cognizance of the aforesaid offences was taken by the learned Magistrate as per Annexure 15 order on the basis of a protest complaint submitted by the 2nd respondent herein as Annexure 14.
3. The basic facts of the case are as follows: The 1 st petitioner is the former Executive Director of M/s Socio Economic Union Foundation (hereinafter referred to as "M/s SEUF") which is a non- governmental organization accredited by the Kerala Government and is engaged in providing technical expertise in implementing various projects by the Government agencies in the field of water supply and sanitation. The 2nd petitioner is the present Executive Director of M/s. SEUF. The 2nd respondent/complainant was the Finance Officer of M/s. SEUF. While so, several complaints were received against the 2 nd respondent and an inquiry was conducted in connection with the same. CRL.MC NO. 7996 OF 2017 4 Based on the same she was suspended from service as per order dated 18.06.2014 and thereafter disciplinary proceedings were conducted. Later, Annexure 4 inquiry report was submitted by the inquiry officer finding the 2nd respondent guilty of the charges raised against her. Consequently, she was dismissed from service as per Annexure 5 order dated 18.03.2015. Even though an appeal was filed against the dismissal before the appellate authority that also resulted in dismissal vide Annexure 6 order.
4. The basic allegation against the 2nd respondent was regarding the misappropriation of certain amounts of M/s. SEUF. Initially, the 1 st petitioner submitted a criminal complaint against the 2 nd respondent as CMP No.1257/2015 before the Chief Judicial Magistrate Court, Thiruvananthapuram alleging offences under Sections 406, 409, 465, 471, 420 and 201 of Indian Penal Code. On the basis of the same, an inquiry under Section 202 of Cr.P.C. was conducted by the learned Magistrate wherein, the SHO, Museum Police Station was directed to submit a report after conducting an inquiry in connection with the same. Annexure 8 is the aforesaid inquiry report submitted by SHO Museum CRL.MC NO. 7996 OF 2017 5 Police Station. On the basis of the same, the Chief Judicial Magistrate took cognizance of the aforesaid offences against the 2nd respondent and it is now pending as CC No.168/2017.
5. Apart from the above, the 1st petitioner has filed another complaint against the 2nd respndent before the SHO, Museum in respect of misappropriation of funds of the organization to the tune of Rs.18,25,900/-. In connection with the aforesaid complaint also, Crime No.533/2016 was registered by Museum Police Station and is now pending investigation. The 2nd respondent has filed Crl.M.C.No.4316 of 2017 and Crl.M.C. No.5206 of 2020 challenging the said proceedings.
6. While so, the 2nd respondent submitted a complaint before the Station House Officer, Museum Police Station alleging as follows:
On 18.06.2014 afternoon the 2nd respondent was summoned by the 1st petitioner to the office of the M/s. SEUF. Accordingly, she went to the office along with her husband. It was alleged that during the course of discussions, the 1st petitioner caught hold of her saree along with her navel and pushed her back shouting abusive and threatening words against her. It was alleged that the 2nd petitioner abetted the 1st petitioner CRL.MC NO. 7996 OF 2017 6 to attack the 2nd respondent.
7. On the basis of the same, another complaint with very same allegation was also submitted before the City Police Commissioner. Based on the same, Crime No.882/2014 was registered by the Museum Police for the offences under Sections 294(b), 341, 354(A)(1) and 34 of Indian Penal Code. Annexure 11 is the said FIR. After completing the investigation in detail, Annexure 12 final report was submitted by the Police, with a conclusion that the complaint submitted by the 2 nd respondent is a false one. Subsequently, Annexure 14 protest complaint was submitted by the 2nd respondent, reiterating the allegations contained in her earlier compliant. The learned Magistrate conducted enquiry under Section 202 Cr.P.C. and as per Annexure 15 order, cognizance was taken for the offense under Section 341, 354, 506(i) and 34 of Indian Penal Code as CC No.355/2016. This Crl.M.C. is filed seeking to quash all further proceedings against the petitioners herein in CC No.355/2016.
8. Heard Sri.V.Ajakumar, learned counsel for the petitioners and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State and Sri.D. Kishor, learned counsel appearing for the 2nd respondent. CRL.MC NO. 7996 OF 2017 7
9. The challenge in this Crl.M.C. is against the proceedings against the petitioners based on Annexure 14 complaint and the order passed by the learned Magistrate thereon as per Annexure 15. The basic allegation against the petitioners is that, the 2 nd respondent was assaulted and her modesty was outraged by the act of the 1st petitioner by catching hold of her saree and also using abusive words against her with assistance of the 2nd petitioner herein. The crucial aspect to be noticed in this regard is that, in support of the complaint the 2 nd respondent has produced four witnesses including her husband. Annexure 12 is the refer report submitted by the Police, after completing the investigation in crime No.882/2014, which was registered on the basis of the complaint submitted by her. On going through the aforesaid refer report, it can be seen that, during the course of investigation several petitions were submitted by the 2nd respondent before the authorities concerned complaining that investigation was not being conducted in appropriate manner. It is seen from the refer report that the said complaints were entertained and investigation was handed over to some other officers on all occasions. Ultimately, the aforesaid investigation resulted in CRL.MC NO. 7996 OF 2017 8 Annexure 12 refer report wherein the allegations raised by the 2 nd respondent were found to be false. It is seen from Annexure 12 report that very detailed and extensive investigation has been conducted by the Police. In addition to the witnesses cited by the 2 nd respondent several other persons were questioned by the Police. Total number of persons thus questioned by the Police is 23.
10. From the part of the 2nd respondent, she has produced four witnesses including her husband. It is specifically mentioned in Annexure 12 report that, three independent witnesses cited by the 2 nd respondent as the occurrence witnesses were questioned by the Police. During the course of recording their statements certain serious discrepancies were found.
11. One of the witnesses was one G.Prakash who was the Security Officer in Sreemoolam Club. Initially he made a statement that he had seen the incident. Later call details and tower location of the mobile phone of the said witness was examined, wherein, it was found that the said witness was not in the location at the relevant time. When he was questioned again on the basis of the same, he stated that he did CRL.MC NO. 7996 OF 2017 9 not witness the incident and he has given the statement earlier as stated by the husband of the 2nd respondent. Accordingly, the statement of the said witness was recorded under Section 164 Cr.P.C. by the Chief Judicial Magistrate, Thiruvananthapuram. However, in the statement under Section 164, he again stated that he had witnessed the incident. In such circumstances, further investigation in respect of the same was conducted. For the said purpose he was again called by the investigating officer, but he failed to come initially. Later he came to the investigating officer along with the husband of the 2nd respondent. While recording the statement of said Prakash, he stated that at the relevant time he was on duty in Sreemoolam Club and as he felt headache, he went to a medical store at Vellayambalam-Sasthamangalam Road for buying 2 Paracetamol tablets and 10 Pantop 40 tablets. Thereafter, while he was coming back to the Sreemoolam Club on his bike, he witnessed the said incident. Investigating Officer examined the duty register of Sreemoolam Club and found that the said Prakash was on duty at the relevant time and the staff of the Sreemoolam Club informed that it was not possible for the said witness to go out of the club once he enters CRL.MC NO. 7996 OF 2017 10 duty, without the consent of the Secretary. It was reiterated by the said staff of the Club that he did not leave the office during the period from 2 p.m. to 9.30 p.m. on 18.06.2014. Apart from the above, owner of the medical shop from which the said witness has claimed to have purchased medicine was also questioned by the Police. The sales details of the said medical shop of 18.06.2014 from the computer were also examined. It was revealed that the only sale of Pantop 40 tablets conducted on the day was to one Santhakumari P. and the quantity thereof was 14 in numbers. Thus from all the aforesaid aspect the Investigation Officer came to a definite conclusion that the aforesaid witness namely Prakash was not there at the relevant time.
12. Another witness is Smt.Ambika. She also stated that she had witnessed the incident of assault on the 2 nd respondent. The call details of the said witness were also taken, and it was revealed that on 18.06.2014 from 11.24 a.m. to 6.18 p.m. her mobile phone was within Kazhakkoottam tower location which is away from the place of incident. She also stated that her phone was with her all along and she has not given her mobile phone to any other person. She was questioned again CRL.MC NO. 7996 OF 2017 11 on the basis of the call details. Initially she denied having gone to Kazhakkoottam at the relevant time. Later she conceded that she went to Kazhakkoottam on that day.
13. Another witness cited by the 2nd respondent was one T.V. Satheeshbabu. He also stated that he had witnessed the said incident. According to him he was passing through the road on his bike and hearing the loud noise he stopped his vehicle. While so, he witnessed the incident. However, his mobile phone location indicated that he was also not present anywhere near the place of incident at the relevant time. Apart from above, the statements of several other persons were also examined. But no evidence indicating the offences as alleged against the petitioners herein were revealed.
14. Another crucial aspect relied on by the investigating officer in Annexure 12 is that in the First Information Report submitted by the 2nd respondent, the only allegation was that the 1st petitioner caught hold of her saree and touched her navel. However, during the course of investigation when her statement was recorded, the 2nd respondent had stated that during the incident, the 1st petitioner put his hand inside her CRL.MC NO. 7996 OF 2017 12 saree and touched her private parts. The said allegation was not there in the original complaint submitted by her. The Investigating Officer also noticed that on 18.06.2014, upon receipt of suspension order, the 2 nd respondent along with her husband reached the office of the M/s.SEUF at about 2.30 p.m. and shouted at the officers against the said suspension. When the situation got aggravated, Police party from Museum Police Station also reached there and media persons were also present. It is also specifically noted by the Investigating Officer that at the relevant time she talked with the media people and at that time also she had not made any allegation against the petitioner to the effect that he touched navel part of the 2nd respondent and also put his hands inside her saree and touched her private parts. Apart from the above materials, the Police has also recorded the statements of about more than 20 witnesses as well. After examining all these details Annexure 12 refer report was submitted by the Police.
15. A protest compliant was submitted by the petitioner against the aforesaid categorical conclusions arrived at by the Police in Annexure
12. On going through the aforesaid protest complaint it can be seen that CRL.MC NO. 7996 OF 2017 13 the 2nd respondent is reiterating the allegations which she made earlier. The aforesaid compliant does not point out any specific manifest error or manifest miscarriage of justice in the investigation conducted by the Police. Only averment with regard to the Police report therein is that one of the witnesses namely Prakash was threatened by the Police and certain signatures were obtained from him in some blank papers by the Police. It was also alleged that Police has conducted the investigation in a biased manner consequent to the influence of the petitioners herein. However, the same does not contain any materials contradicting the findings entered into by the Police after conducting an extensive investigation including the materials such as the tower locations of the mobile phones of the witnesses. The witnesses cited in the said complaint are also the same witnesses whose statements were found to be false by the Investigating Officer on the basis of specific materials including scientific evidence. In Parameswaran Nair v. Surendran and Another [2009 (1) KLT 794], this Court considered the manner in which a protest compliant has to be appreciated. After referring to various judgments and the statutory provisions, the legal prepositions in respect of the same were summed up CRL.MC NO. 7996 OF 2017 14 by this Court in para 17 and 18 which reads as follows:
"17. The well settled legal propositions can be summed up as follows:
(1) When a final report is made by an officer of the Police Station under sub-section 2 of S. 173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.
(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant.
Notice is mandatory if the Magistrate is inclined to accept the report.
(3) Magistrate can direct further investigation under sub-section 3 of S. 156.
(4) Magistrate can take cognizance on the final report itself under S. 190(1)(b) disregarding the opinion of the Police and issue summons.
(5) Magistrate can take cognizance on the original complaint, where investigation under sub-section 3 of S. 156 was earlier ordered and record the statement of the complainant and the witnesses as provided under S. 200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a Police officer or such other officer as provided under S. 202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued.
(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings.
18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the CRL.MC NO. 7996 OF 2017 15 complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted. If the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the Police under sub-section 2 of S. 173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S. 204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order or the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings."
As per the principles laid down in the said judgment, a second complaint will lie only if there is a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts being brought in, which the complainant had no knowledge or with due diligence could not have brought forward in the previous proceedings. When the facts and circumstances of this case is considered in the light of the observations made by this Court, it can be seen that Annexure 14 complaint does not point out any manifest error or miscarriage of justice in the conclusions arrived at by the Police. In CRL.MC NO. 7996 OF 2017 16 Annexure 15 order passed by the learned Magistrate also, nothing is seen referred to in respect of the findings in Annexure 12 final report nor of the discrepancies, if any, therein. It is also discernible that the 2 nd respondent could not produce any new materials which were not before the investigating officer while completing the investigation as per Annexure 12 refer report.
16. In State of Haryana v. Ch. Bhajan Lal [1992 Supp (1) SCC 335], the hon'ble Supreme Court was pleased to formulate certain guidelines for invoking powers of the High Court under Section 482 Cr.P.C. Out of the said guidelines the guidelines 5 and 7 reads as follows:
"(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can never reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) xxxxxxx
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceedings 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."
As per guideline No.5 in Bhajan Lal's case (supra) if the allegations are so absurd and inherently improper on the basis of which, no prudent CRL.MC NO. 7996 OF 2017 17 person can reach a just conclusion that there are sufficient grounds for proceeding against the petitioners, the powers of this Court under Section 482 Cr.P.C. can be invoked. So also, when the criminal proceeding is manifestly attended with malafides and maliciously instituted with an ulterior motive for wrecking vengeance, the said power can be invoked. On analyzing the factual situation in this case, it is evident that the case in hand comes within the categories mentioned above. It is evident that there were enmity between the 1 st petitioner and the 2nd respondent. As against the 2nd respondent two criminal cases have been registered at the instance of the 1 st petitioner. Similarly, at the instance of the 2nd respondent two criminal cases were registered against the 1st petitioner herein including the case which we are dealing at the moment. In addition to the above departmental proceedings were also initiated against both the said parties by the complaint submitted by them against each other. The detailed investigation conducted by the Police on the allegations raised by the 2 nd respondent indicates falsity of the allegations. In such circumstances, I am of the view that the entire proceedings on the basis of Annexure 14 private complaint are clear CRL.MC NO. 7996 OF 2017 18 abuse of process of law as the same was submitted by the 2 nd respondent with malafides and malicious intentions with ulterior motive for wrecking vengeance.
In such circumstances, I am of the view that this is a fit case in which the powers of this Court under Section 482 Cr.P.C. has to be invoked and I do so. Accordingly, this Crl.M.C. is allowed. Annexure 15 order is set aside, Annexure 14 private complaint (CMP 3151/2015) and all further proceedings in C.C. No.355/2016 on the file of Judicial First Class Magistrate Court III, Thiruvananthapuram are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A. JUDGE SCS CRL.MC NO. 7996 OF 2017 19 APPENDIX OF CRL.MC 7996/2017 PETITIONER ANNEXURES ANNEXURE 1 TRUE COPY OF THE SUSPENSION ORDER.
ANNEXURE 2 TRUE COPY OF THE MEMO OF CHARGES DATED
23.8.2014 ISSUED TO THE 2ND RESPONDENT.
ANNEXURE 3 TRUE COPY OF THE CHARGE MEMO (ADDITIONAL)
DATED 25.11.2014.
ANNEXURE 4 TRUE COPY OF THE ENQUIRY REPORT.
ANNEXURE 5 TRUE COPY OF THE DISMISSAL ORDER DATED
18.3.2015.
ANNEXURE 6 TRUE COPY OF THE DISMISSAL ORDER DATED
18.5.2015 OF THE APPELLATE AUTHORITY.
ANNEXURE 7 TRUE COPY OF THE C.M.P NO.1257/2015
ANNEXURE 8 TRUE COPY OF THE INQUIRY REPORT FILED BY
THE S.H.O MUSEUM POLICE STATION.
ANNEXURE 9 TRUE COPY OF THE ACKNOWLEDGMENT OF
RECEIPT OF COMPLAINT BY THE S.H.O MUSEUM.
ANNEXURE 10 TRUE COPY OF THE ACKNOWLEDGMENT OF
RECEIPT OF COMPLAINT FILED BY THE CITY
POLICE COMMISSIONER THIRUVANANTHAPURAM
CITY.
ANNEXURE 11 TRUE COPY OF THE FIR.
ANNEXURE 12 TRUE COPY OF THE REFER CHARGE IN MUSEUM
POLICE STATION CRIME NO.882/2014
ANNEXURE 13 TRUE COPY OF THE ORDER IN CRL.M.A
NO.6720/2016 IN CRL.M.C NO.4092/2016
ANNEXURE 14 THE CERTIFIED COPY OF THE PROTEST
COMPLAINT.
ANNEXURE 15 THE ORDER OF THE HON'BLE JUDICIAL FIRST
CLASS MAGISTRATE COURT III,
THIRUVANANTHAPURAM DATED 4.3.2016 IN
C.M.P NO.3151/2015