IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE 12TH DAY OF FEBRUARY 2014/23RD MAGHA, 1935 [CASE NUMBER] () CRIME NO.1109/2013 OF ERNAKULAM CENTRAL POLICE STATION. (FORMERLY CRIME NO. 262/2013 OF ERNAKULAM SOUTH POLICE STATION. PETITIONER/ACCUSED: DR.V. NARAYANAN, S/O. VASUDEV, AGED 55 YEARS, RESIDING AT SOUMI NIVAS HOUSE, CHAKKUNGAL LANE, NEAR ST.MARTIN CHURCH, PALARIVATTOM P.O., KOCHI -682 025. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE. ADVS.SRI.T.U.ZIYAD, SRI.S.M.PRASANTH, SMT.ASHA BABU, SMT.G.ASHWINI, SMT.RAMEENA.P.K., SMT.AMMU CHARLES. RESPONDENTS/STATE & COMPLAINANT: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KERALA, ERNAKULAM- 682 031. 2. THE STATION HOUSE OFFICER, ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM, KOCHI- 682 018. 3. THE STATION HOUSE OFFICER, ERNAKULAM TOWN SOUTH POLICE STATION, PIN- 682 015. BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. [CASE NUMBER] [ENTITY] ANNEXURE A TRUE COPY OF FIR DATED 14-03-2013 REGISTERED BY THE ERNAKULAM TOWN SOUTH POLICE STATION. ANNEXURE B TRUE COPY OF FIR DATED 28-05-2013 REGISTERED BY THE ERNAKULAM CENTRAL POLICE STATION. RESPONDENT'S EXHIBITS:- NIL. TRUE COPY P.A. TO JUDGE rs. [ENTITY], J. [CASE NUMBER] Dated this the 12th day of February, 2014 ORDER
This petition is filed U/[SECTION] [ACT] to quash Anneuxres-A & B proceedings in [CASE NUMBER] of Ernakulam South Police Station and FIR No.1109/13 of Ernakulam Central Police Station, which were registered U/[SECTION], [SECTION]/[SECTION] [ACT].
2. The petitioner is the accused in the above case. The allegation is that on 13.3.2013, the petitioner contacted one [ENTITY], Branch Manager of Panasonic Company, Kerala and told him that the Inspector General of Police wants an Air-Conditioner and a fridge on a special rate, through mobile phone. Therefore, the dealer contacted the I.G., who denied such request. On the basis of information, Ernakulam South Police registered the above crime. Subsequently, it was transferred to Town Police Station and after investigation, they laid a charge. In the circumstances, the petitioner approached this Court to quash the aforesaid proceedings by invoking the inherent powers of this Court U/[SECTION] [ACT]
3. Heard both sides. The inherent powers of the High Court contemplated u/[SECTION] [ACT] has to be exercised only for the three purposes mentioned in the Section. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned in the section. Inherent jurisdiction to make such orders necessary to "give effect to any order" under this code or to prevent "abuse of the process" of any court or to secure "the ends of justice". Apex Court in [PRECEDENT] held that the inherent power contemplated under [SECTION] [ACT] has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the test specifically laid down in the section itself. The learned counsel appearing for the petitioner contended that no mens rea can be attributed by making the telephone call and it is not followed by any attempt to cheat or to induce the dealer of Panasonic to deliver any property to any person. The investigation report shows that prima facie case is not made out against the petitioner. Interference at this stage, invoking the inherent jurisdiction is essential. If trial is proceeded in this case, it is a mere abuse of process of Court and violation of the fundamental principles of criminal law. According to the learned counsel, the very registration of a second FIR in relation to the same incident is hit by [SECTION] [ACT] and the relied the decisions in [PRECEDENT] and Yanob Sheikh v. State of West Bengal [2013 (6) SCC 428].
4. The learned Public Prosecutor strongly resisted the above case and contended that a detailed investigation was conducted and final report was submitted before the Court and this Court has no jurisdiction to appreciate evidence at this stage.
5. Now the question that arises for consideration is whether the inherent powers U/[SECTION] [ACT] can be invoked in this case.
6. The specific case of the petitioner is that a false case was registered against him and final report was submitted. In this context, I have perused the allegations made in this case. Annexure-A is the FIR in [CASE NUMBER], which was registered on 14.3.2013 alleging offences punishable U/[SECTION], [SECTION]. According to him, two FIRs have been registered against him. The second was FIR No.1109/2013 of Ernakulam City Central Police Station for the same offence. Apex Court in [PRECEDENT] held that while registering a case in a police station having no territorial jurisdiction to investigate the same, there is no harm in transferring the FIR to the Police station having jurisdiction. That is a settled legal position. Therefore, the contention of the petitioner that the second FIR registered in second police station is unsustainable only to be rejected in view of the above decision.
7. Another aspect put forwarded by the petitioner was that there is no mens rea in this case and no offences U/[SECTION]/[SECTION] [ACT] is attracted. It is true that after investigation, final report was submitted. Appreciation of evidence of the witnesses is not possible at this stage, after filing a final report. It is the duty of the learned Magistrate to verify those aspects. In order to attract [SECTION] [ACT], the petitioner by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to 'cheat'. Moreover, a dishonest concealment of facts is deception within the meaning of this section. A person is said to cheat by personation' if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other personal really is. The offence is committed whether the individual personated is a real or imaginary person. It is the primary responsibility of the trial magistrate to verify such overt act was committed by the petitioner by analysing the evidence placed before him.
8. Now the final report is filed and the case is ripe for trial. In such a situation, interference at this stage is not warranted and therefore, this is not a fit case to invoke the inherent powers U/[SECTION] [ACT] and it is dismissed accordingly.
However, the petitioner is at liberty to approach the learned Magistrate and take all defence in this case. It is also directed that the learned Magistrate shall ensure whether there is any material to frame charge against the petitioner and dispose the case according to law.
[ENTITY], JUDGE.