IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 Crl.MC.No. 3889 of 2009() ------------------------------------- CRIME NO.754/2008 OF KASARAGOD POLICE STATION. ................. PETITIONERS/ACCUSED: ------------------------------------- 1. C.H. ABDULLA, S/O. C.H. ABDUL RAHIMAN, AGED 43 YEARS, KADAVATH HOUSE, POST MOGRAL PUTHUR, KASARGODE DISTRICT, PIN-671 128. 2. S.A. HAMEED, S/O.ABOOBACKER HAJI, AGED 46 YEARS, SUNNANKULAM HOUSE, POST MOGRAL PUTHUR, KASARGODE DISTRICT, PIN-671 124. BY ADV. MR.K.P. RAMACHANDRAN, MR.T.NIKLAVU. RESPONDENTS/STATE & COMPLAINANT: -------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KASARGODE POLICE STATION. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. SRI.N.K. SHAJI, S/O.P.K. NANU, AGED ABOUT 38 YEARS, PORT CONSERVATOR, KASARGODE PORT CONSERVATOR OFFICE, RAILWAY STATION ROAD, KASARGODE. 4. SRI.V.K. JOSE, DEPUTY SUPERINTENDENT OF POLICE-CRIME DETACHMENT, KASARGODE. R1 & R2 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3889 OF 2009 =========================== Dated this the 23rd day of February,2010 ORDER Petitioners are the accused in C.C.242/2009 on the file of Chief Judicial Magistrate, Kasaragod taken cognizance for the offences under sections 451 and 353 read with section 34 of Indian Penal code and Section 3(1) of P.D.P.P Act on Annexure 23, final report submitted by the Sub Inspector of Police after investigation. Prosecution case is that on 18.9.2008 at 11 p.m, petitioners in furtherance of their common intention trespassed into the Port Trust Office, Kasaragod while Ayshabi, CW2, the office Assistant alone was there in the office. Second petitioner attempted to take photo, using his mobile phone, CW2 affixing office seal in the passes being granted, for permitting transport of river sand Crl.M.C.3889/2009 2 and when she tried to obstruct the same, first petitioner by force took away the book and tore the same and caused obstruction to the discharge of official duty and thereby committed the offences. The case was registered under Annexure A14 F.I.R on 25.10.2008. Petitioners approached this court to get anticipatory bail under section 438 of Code of Criminal Procedure It was granted under Annexure 8 order. This petition is filed under section 482 of Code of Criminal Procedure to quash the final report and the cognizance taken or in the alternative to direct a fresh investigation by an impartial investigating Officer. 2. Petitioners contended that the officials and employees of Kasaragod Port Office are aiding large scale sand mafias by receiving bribe and reports were published about the illegal sand mining from Mogral Puthoor and Shiriya river and petitioners have lodged several complaints before competent authorities to prevent the unauthorised Crl.M.C.3889/2009 3 illegal actions on the part of the officials and due to these reasons Sub Inspector of Police and the Port Conservator are nursing grievance against the petitioners and they hatched a conspiracy and registered the case. It is contended that as evidenced by Annexure A3 paper report, Kerala State Human Rights Commission had taken a case against the illegal sand mining and State Information Commissioner in an appeal filed by the petitioners against non issuance of information sought for by the second petitioner, the third respondent was directed to provide the information sought by him levying a penalty of Rs.9250/-. On 18.9.2009 third respondent was not present in his office. On that day petitioners had gone to the Port Office to submit an application under the Rights to Information Act. Sukumaran one of the staff of the office tore the application form and put it in the waste basket and warned that they will lodge a complaint alleging that petitioners trespassed in Crl.M.C.3889/2009 4 the office. Therefore petitioner sent Anneuxre A5 representation dated 20.9.2008 to the Chief Minister and it is much thereafter on 25.10.2008 after lapse of 36 days the F.I.R was registered and that itself shows that the case is foisted. Petitioners contended that Annexure A13 reply received by the counsel appearing for the petitioners on 20.11.2008 from the Sub Inspector of Police establish that there is no other case pending against the petitioners and hence continuation of the proceedings is only an abuse of process of the court and it is to be quashed. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Learned Public Prosecutor also made available the Case Diary. 5. The argument of the learned counsel appearing for the petitioners is that if in fact petitioners trespassed into the office on 18.9.2009 Crl.M.C.3889/2009 5 and tore the office records, a complaint would have been lodged immediately and Annexure A5 complaint sent by the first petitioner to the Chief Minister on 20.9.2008 establishes that it was the petitioners who raised a complaint immediately on the very next day, disclosing that the application filed under the Right to Information Act was torn off by the officials of the Port Office and the Chief Minister subsequently received a report from the District Superintendent of Police, which was also made available by the learned counsel. The report discloses that with regard to the incident a complaint was earlier sent by the Port Conservator and was received at the office of the Superintendent of Police which in turn was sent to the Sub Inspector of Police for enquiry on 23.9.2008 and though notice was sent to the petitioners for enquiry they did not appear and finally the F.I.R was registered. 6. The argument of the learned counsel is that Crl.M.C.3889/2009 6 when the very next day of the incident petitioners sent a complaint before the Chief Minister who sent it to the Superintendent of Police with regard to that complaint, no case was registered till a report was called for by the Chief Minister and F.I.R was registered only much later to save the officials concerned and hence it is clear that the case is foisted. Learned counsel argued that even if there is any record to show that prior to the registration of the case a complaint was sent by the Port Conservator to the Superintendent of Police, it could only be fabricated later and cannot be relied on and continuation of the proceedings is only an abuse of process of the court and it is to be quashed. 7. Learned Public Prosecutor submitted that the case has been investigated properly and there is no reason to quash the final report or the cognizance taken. 8. At the first blush one may be persuaded to Crl.M.C.3889/2009 7 think that if an incident as stated in Annexure A14 F.I.R had taken place, even if the Port Conservator was not available at his office on that day, he would lodge a complaint immediately on reaching the office the next day and fact that no complaint was lodged immediately may cast suspicion on the genuineness of the subsequent case. But the Case Diary shows that a complaint was sent by the Port Conservator , Kasaragod on 18.9.2008 itself to the Superintendent of Police and it was received at the office of the Superintendent of Police on 20.9.2008 as the initial is seen therein, which was forwarded to the Station House Officer, Kasaragod as per G3/24815/2008 dated 23/9/2008. It is seen that there is the initial of the Sub Inspector of Police dated 23.9.2008. If that be so, it cannot be said that the version of the incident as seen in Annexure A14 F.I.R was created subsequently, consequent to the complaint sent by the petitioners to the Chief Minister and report was called for Crl.M.C.3889/2009 8 from the Superintendent of Police as canvassed by the learned counsel. Anyway this is an aspect which is to be considered by the Magistrate based on the evidence at the time of trial. Exercising the powers under section 482 of the Code of Criminal Procedure, evidence cannot be appreciated and settle whose version of the incident is correct or to quash the proceedings. Petitioners are definitely entitled to raise all these contentions at the time of trial. It may be true that if an incident of the nature, as alleged by the prosecution has taken place, immediately a case should have been registered and the delay casts doubt on the genuineness of the version, especially when a complaint was sent by the petitioners to the Chief Minister on the very next day and F.I.R is seen registered much later after the chief Minister called for a report from the concerned Superintendent of Police. But based on any such assumption, the case cannot be quashed as sought Crl.M.C.3889/2009 9 for. Petitioners are at liberty to raise all the contentions before the learned Magistrate and to seek an order of discharge under section 239 of Code of Criminal Procedure. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006