IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 12TH DAY OF MARCH 2010/PHALGUNA 21, 1931 Crl.MC.No. 2637 of 2007 ( ) --------------------------- CC.312/2007 of J.M.F.C.-I, MAVELIKKARA PETITIONER(S): ------------- P.N. SETHUNATH, DY. S.P.OF POLICE, NARCOTIC CELL, PATHANAMTHITTA. BY ADV. SRI.R.KRISHNA RAJ COMPLAINANT(S): --------------- 1. MUJIB REHMAN, ADVOCATE, MAVELIKKARA. *2. JAYA KUMAR, JUDICIAL FIRST CLASS MAGISTRATE, MAVELIKKARA. 3. RAVEENDRANATH, JUNIOR SUPERINTENDENT, JUDICIL FIRST CLASS MAGISTRATE, MAVELIKKARA. 4. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. PUBLIC PROSECUTOR SRI. JAYASURYA * THE DESCRIPTION OF THE 2ND RESPOSNDENT STANDS CORRECTED AS JUDICIAL IST CLASS MAGISTRATE COURT, MAVELIKKARA AS PER ORDER ORDER DATED 23.8.2007 IN CRL.M.A.NO.4948/07. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-03-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Crl.M.C. No.2637 of 2007 -------------------------------------------------- Dated this the 12th day of March, 2010 ORDER Petition to quash Annexure A-6 complaint. 2. First respondent herein, who is a practising advocate, filed a complaint against petitioner, who was the Circle Inspector of Police, alleging offences under Sections 341, 294(b), 511 of 324, 506(1) IPC before the Magistrate Court. According to respondent- complainant, he appeared for his client before the Magistrate Court in Crime No.186/2004 on 3.2.2007 and made some remarks in court against petitioner who was the investigating officer in that case. The said remarks annoyed the petitioner. 3. After the submission was made, complainant- lawyer came out of the court at about 1.30 p.m. and while he was talking to another colleague, Sri. K.K. Rajeshkumar, advocate, petitioner came to him and asked him whether he was having Vakalath in the case. When the complainant affirmed it, petitioner allegedly abused him in obscene [Crl.M.C.No.2637/2007] 2 language in public and caught hold of complainant's robes and wrongfully restrained him. Petitioner also drew his belt and beat complainant on his head, which he evaded and hence no injury was caused. 4. Sri.Rajesh and Sri.Adeep, advocates, who were witnessing the incident intervened in the matter while the accused threatened complainant by saying that he would be implicated in false case etc. It is further alleged that on the basis of a complaint lodged by Ms. Radha, advocate, a crime had been registered against respondent-complainant, as second accused. Advocate Radha is a close relative of the accused. The complainant was asked to appear before the C.I. of Police also. The complainant took bail from the court and hence petitioner developed enmity towards the complainant. 5. Learned counsel for petitioner submitted that a false case was filed against petitioner and hence it may be quashed. This petition is filed to quash Annexure-6 complaint. Actually, petitioner appeared before the court [Crl.M.C.No.2637/2007] 3 pursuant to a notice issued to him and while he was coming out of court, complainant abused petitioner and committed certain offences against him. A crime was registered against complainant on the same day as Crime No.92/07. But the F.I.R. which was sent to the court on 3.3.2007 was not shown as accepted in the records. It was retained in the Court after striking off the relevant entries in Annexure -A4 relating to Crime no.92/07. 6. The FIR was shown as received in the court only on 5.7.2007. All these were done by 3rd respondent with the connivance of 2nd respondent, who is the Magistrate, it is alleged. The idea was to firstly go through the complaint filed by petitioner against complainant and suitably draft a complaint against petitioner later and file it before the court. Learned Magistrate was supporting the complainant and at his instance, manipulations were done in the court records, it is further alleged. The lawyers split into two groups in connection with the incident and Magistrate was allegedly taking the side of complainant's group. [Crl.M.C.No.2637/2007] 4 7. Petitioner understood that sufficient space was left in the C.M.P. Register to enter the details of the proceedings which would be initiated against petitioner. Several other manipulations were also effected, in furtherance of common intention by the Junior Superintendent of the court as well as the Magistrate. There are documents to establish the same, it is submitted. The present complaint is thus falsely filed as an after-thought and it may be quashed, it is submitted. 8. Learned counsel for petitioner also brought to the notice of this Court that Magistrate is antagonized against petitioner without any reason but it can only be at the instance of the complainant. It is also pointed out that petitioner was asked to appear before the Magistrate court on 2.3.2007, as per a memo issued by the court, on the same day. As per the memo (Annexure A-1), his personal appearance was insisted upon to explain certain laches on the part of petitioner. According to Magistrate, even though accused in Crime no.186/04 was in judicial custody for more [Crl.M.C.No.2637/2007] 5 than 90 days, a remand application was filed by petitioner, requesting to extend the remand. The petitioner gave a reply stating that charge sheet was already filed beyond the expiry of 90 days and hence, there is no illegality in filing extension report. The charge in that case was returned by the Magistrate stating that it should accompany the Chemical Examination Report. 9. According to petitioner, the complaint is falsely filed to defer promotion to petitioner as Dy.S.P. and he is victimized by the complainant, with the active assistance of the Magistrate and the junior Superintendent. It is also submitted that when hundreds of private complaints filed before the same court were to be numbered, the complaint filed against petitioner was numbered instantaneously and summons was also issued, directing petitioner to appear before the Magistrate on 4.7.2007. The summons was actually despatched only on 26.6.2007 by registered post . Copies of summons are A12 and 13. [Crl.M.C.No.2637/2007] 6 10. It is also argued that when the petitioner appeared before Magistrate court pursuant to Annexure-A1 show cause notice, he was harassed by the Magistrate in open court by making harsh remarks against him. Learned Public Prosecutor argued that a report from the Magistrate was called for and learned Magistrate denied all the allegations made. It is pointed out that a request is also made in the Crl.M.C. by petitioner to take action against respondents 1 to 3 for manipulating the documents and creating false records. According to learned Public Prosecutor petitioner ought to have made complaint to the District Court or High Court, if such manipulations have been effected, but such a request cannot be heeded to in this petition, it is submitted. 11. Learned counsel for petitioner also argued that petitioner is entitled to protection of Section 197 of the Code, since the incident allegedly happened, while he was on duty and he was going out of the court after appearing before court in pursuance of summons. Hence, he is entitled to the benefit under Section 197 of the Code. But no [Crl.M.C.No.2637/2007] 7 sanction is obtained in this case and hence prosecution is bad on this ground also. Learned Public Prosecutor submitted that the act allegedly committed was not in the course of official duty of petitioner and hence, petitioner is not entitled to the benefit of Section 197 Cr.P.C. 12. On hearing both sides, I find that prima facie, petitioner has a strong case regarding alleged manipulations and forgery committed in respect of court records. It is alleged that learned Magistrate is also a party to such manipulations and documents are produced in support of the contentions. No doubt, the allegations levelled against learned Magistrate are of very serious nature. According to petitioner, records will show that manipulations were effected in the records in respect of date of receipt of F.I.R. in Crime No.92/07. 13. It is also submitted that while various other private complaints were yet to be numbered, the complaint filed by complainant was numbered, out of turn. If the allegations are established, no doubt, it will reveal the dubious [Crl.M.C.No.2637/2007] 8 circumstances under which the present complaint was filed against petitioner. It can also be found out whether the complaint was filed as an after-thought and as a counter- blast to the crime registered by petitioner against complainant. Petitioner has produced documents to prove the allegations made in respect of manipulations in court records. However, those facts are seriously disputed. 14. Therefore, without resolving the disputed facts, it may not be proper to take a decision whether the complaint is falsely filed against petitioner. However, the dispute whether above allegations are false or not cannot be resolved in a proceeding like this, it is well settled. Therefore, this Court cannot go into the factual dispute and resolve the same and take a decision in this case. It is also well settled that if the allegations made in the complaint prima facie constitute offence, the court cannot quash the complaint, unless the court finds that the complaint is mala fide etc. [Crl.M.C.No.2637/2007] 9 15. It is true that if the complaint is false one it is intended to harass petitioner, the court can certainly quash the complaint, since continuance of proceedings will amount to abuse of process of the court. But, having disputed the allegations made by petitioner and especially in the light of the report of the learned Magistrate, denying the allegations a deeper probe will be necessary to decide whether the complaint is a false one or not. Therefore, it will be too premature on the part of this court to pronounce anything about the falsity or otherwise of the allegations made by petitioner against complainant and others. 16. This court cannot and shall not resolve factual disputes in a proceedings like this, as per the settled legal position. Regarding the application of Section 197 Cr.P.C. also, it appears that there are certain factual disputes which require to be resolved. Whether the alleged offence was committed in discharge of official duty or not can be decided only on the basis of evidence. [Crl.M.C.No.2637/2007] 10 17. However, petitioner will be at liberty to take up the contention regarding the benefit of Section 197 of the Code at the appropriate stage before the trial court. It is not proper to quash the complaint on the contentions raised regarding want of sanction without resolving factual disputes relating to the contention on Section 197 Cr.P.C. 18. If the petitioner raises contentions regarding application of Section 197 Cr.P.C. and the falsity of the complaint at the appropriate stage, the trial court shall consider the same and take appropriate decision, untrammelled by any of the observations, if any, made in this judgment, on merits of the case. I would also add that the serious allegations made against Magistrate and the staff are to be dealt with on the administrative side. This petition is disposed of accordingly. Sd/- K. HEMA, JUDGE. Krs.