IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JULY, 2008 / 27TH ASHADHA, 1930 Crl.MC.No. 516 of 2005 (D) (CC.421/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD) .................... PETITIONER/ACCUSED: ----------------------------- DR.SURESH BABU, S/O.K.VELAYUDHAN, SOWPARNIKA, VAYYETTE, VENGARAMMOODU, THIRUVANANTHAPURAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS/COMPLAINANT: --------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SULBA BEEVI, D/O.THAHIRA BEEVI, KANGANIKKARA BLOCK NO.16, PANGODE, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR FOR R2 BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R1. THIS CRIMINAL MIS C. CASE HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 516 of 2005 --------------------------------------------- Dated this the 18th day of July, 2008 O R D E R The sole accused in C.C.No.421 of 2004 on the file of the Judicial First Class Magistrate Court, Nedumangad seeks an order from this Court under Section 482 of the Code of Criminal Procedure quashing Annexure A5 complaint pending before the J.F.C.M.Court, Nedumangad. C.C.No.421 of 2004 is instituted in the court below taking cognizance upon Annexure A5 protest complaint filed by the second respondent herein. 2. The case of the petitioner can be summarised as follows:- The petitioner was attacked on 28.4.2004 at about 6.30 p.m. by the husband of the second respondent herein and on the basis of the information furnished by the petitioner, Crime No.107 of 2004 was registered in the Palode Police Station against the husband of the second respondent and certain other persons for the offences punishable under Sections 452,294(b),323,332,427 and 34 I.P.C. Thereafter, to counter blast the above criminal Crl.M.C.NO.516 of 2005 :-2-: case, after about one and a half month, the second respondent herein filed a complaint straight away before the Judicial First Class Magistrate Court, Nedumangad with the allegation that the petitioner had committed an offence under Section 354 I.P.C. against her on 26.4.2004. The said complaint was sent to Palode Police Station under Section 156(3) of Criminal Procedure Code for investigation. On receiving the complaint, Crime No.125 of 2004 was registered in the Palode Police Station and they undertook the investigation and through their investigation, it is revealed that the allegation is false and they have accordingly filed a refer report, a copy of which is filed along with this Crl.M.C. as Annexure A4. Aggrieved by Annexure A4 report, in spite of various petitions and representation filed before the various authorities, the second respondent herein preferred the present protest complaint viz., Annexure A5 in which the allegation is that at about 3 p.m., on 26.4.2004, the petitioner herein had committed the offence under Section 354 I.P.C. when the complainant Crl.M.C.NO.516 of 2005 :-3-: approached him with the complaint of diarrhea and stomach pain, when she was attending her mother in law who was admitted in the hospital where the petitioner is working. The court below took cognizance upon the above complaint and instituted the above case. It is the above case and the complaint, are sought to be quashed in these proceedings. 3. I have heard the learned counsel for the petitioner and respondents and also the Public Prosecutor for the first respondent. 4. Reiterating the contention raised in the Crl.M.C., the counsel for the petitioner submits that Annexure A5 complaint is filed with mala fide intention and to simply harass the petitioner who is a Doctor by profession and in lodging Annexure A5 complaint, his professional enemies are behind it. It is also pointed out by counsel for the petitioner that on the basis of receipt of the complaint from the court under Section 156(3) of the Code of Criminal Procedure, after registering a crime, the Police had already conducted a very detailed Crl.M.C.NO.516 of 2005 :-4-: investigation and they have questioned several witnesses and examined various documents and finally, they found that the allegations raised against the petitioner are absolutely false and baseless and they intimated their conclusion by filing Annexure A4 refer report to the court below. Learned counsel further submits that considering the entire facts and circumstances involved in the case, the only conclusion that can be arrived is that Annexure A5 protest complaint is filed with a mala fide intention. In support of the above contention, he further submits that there is long delay in filing the complaint before the court below even during the initial time. The delay was not properly explained. According to the counsel for the petitioner, even on comparison regarding the date of occurrence in the above two incidents, it can be seen that actually the petitioner was attacked on 28.4.2004 and the Police registered a crime and investigation was conducted and proper charge was laid. If the occurrence alleged in the protest complaint is true, there is no explanation as to Crl.M.C.NO.516 of 2005 :-5-: why the complainant failed to approach the Police in time and even if the Police has not taken appropriate action at her request, it was also open to her to approach the higher superior officers of the Palode Police Station authorities. According to counsel for the petitioner, there is no explanation for the above lapse on the part of the complainant. The learned counsel for the petitioner also invited my attention to certain contradictions and omissions that contained in the statement recorded by the Police during their investigation in Crime No.125 of 2004 which was registered at the instance of the complainant. This Court is not in a position to enter into any finding or appreciating those contradictions and omissions because, as on today, those documents are not part of the prosecution or complainant's record. Certainly, if the petitioner is so advised, the same can be considered at the time of trial, if the law permits. 5. Counsel for the petitioner very much argued regarding the delay occurred in filing the complaint Crl.M.C.NO.516 of 2005 :-6-: initially before the court below. It is the case of the complainant which can be seen from Annexure A5 complaint that the approach adopted by the Police was against the complainant and to help the petitioner and therefore, she approached various other authorities in the mean while. It is true that if the date of alleged incident has taken as a true date, there is delay of more than 40 days. The explanation offered by the complainant was to be appreciated during the trial of the case and it is for the trial court to come into a correct conclusion on merits regarding those contentions. It is not proper for this court to enter into the finding on that issue. 6. I have perused Annexure A5 complaint and I am deliberately abstaining from making any observation or finding regarding the merits of the allegations contained in the complaint. If the petitioner is of opinion that the protest complaint is made to harass the petitioner and with mala fide intention, he can raise those contentions before the court below at appropriate Crl.M.C.NO.516 of 2005 :-7-: stage and he can also rely upon the materials which are produced at that time or after taking steps for producing such materials. But, on a consideration of Annexure A5 protest complaint and other materials on record, I find no ground to interfere with Annexure A5 complaint. 7. In the light of the above discussion and materials available on record, no interference is warranted under Section 482 of the Code of Criminal Procedure. All the contentions raised by the petitioner in this petition can be raised before the court below at appropriate time. It is open for the petitioner to avail such opportunity even without any observation or any direction. With the above observation, the Crl.M.C. is dismissed. V.K.Mohanan, Judge MBS/ Crl.M.C.NO.516 of 2005 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- Crl.M.C.NO.516 of 2005 :-9-: O R D E R DATED: -6-2008 Crl.M.C.NO.516 of 2005 :-10-: