IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 27TH DAY OF OCTOBER 2009/5TH KARTHIKA 1931 Crl.MC.No. 349 of 2006 -------------------------- CC.845/2004 of J.M.F.C., ADOOR PETITIONERS/ACCUSED:: ---------------------- 1. BABU THOMAS, AGED 50 YEARS, ADVOCATE, S/O. THOMAS, KARINGOZHIKKAL VEEDU ERNAKULAM. 2. JOSEPH, S/O. ULAHANNAN, VILANGATTIL HOUSE, MAMANGALAM, EDAPPALLY. BY ADVS.SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE RESPONDENT/COMPLAINANT:: ---------------------------- THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------------- Crl.M.C.No.349 of 2006 ----------------------------------------------------- Dated this the 27th day of October, 2009. ORDER Petition filed by the petitioners for quashing the proceedings initiated against them for offences under Sections 447, 294(b), 353 read with 34 IPC, on the basis of a crime registered on a statement given by a police constable. 2 .As per the allegations, petitioners 1 and 2 trespassed into the KAP headquarters and when they were questioned by the defacto complainant, he was pushed down by force and the flap button of the shirt was pulled. The defacto complainant was a sentry duty. The petitioners were found to be intoxicated and they also abused the defacto complainant in obscene language. The flap button of the uniform was broken. When the defacto complainant whistled, officials came running to the spot from the guard room. The incident happened at 3.30 p.m. and the defacto complainant was obstructed from discharging his official duty. Crl.M.C.No.349 of 2006 2 3. Learned counsel for the petitioners submitted that there was no trespass into the KAP headquarters as alleged. The second petitioner had filed a writ petition before this court in view of a dispute between himself and another contractor relating to the construction of a road. An Advocate Commissioner was appointed by this court to measure the work done by the petitioner and accordingly the petitioner along with his counsel (first petitioner) went to the spot to assist the Advocate Commissioner on receiving notice of inspection. Accordingly, on 1.5.2003 both petitioners went to the spot, while the police officials objected to the measurement taken despite the fact that the Advocate Commissioner explained that he was inspecting the property on his appointment as an Advocate Commissioner. 4. The Advocate Commissioner was accompanied by an Engineering Commissioner also. The police officials from Adoor Police Station, including the Circle Inspector and Dy.S.P came to the spot and threatened to prosecute the Advocate Commissioner for entering into the KAP headquarters compound. Since the work was continued and the measurement was carried on, petitioners were taken by force Crl.M.C.No.349 of 2006 3 to the Adoor Police Station. No incident alleged as taken place except that various police officials from the camp as well as from the Adoor police station had obstructed the Advocate Commissioner and raised protest against them from obstructed and disrupted with the work, since in spite of the protest the work was continued by the Advocate Commissioner with the aid of the petitioners, the police officials were offended and a false case is foisted against them without any basis, it is submitted. 5. In respect of the allegation made that the flap button of the uniform of the defacto complainant was broken by petitioners, and preparation of the mahazar relating to the uniform, it is submitted that there is a material discrepancy in the time of alleged seizure and the preparation of mahazar. The FIR is seen registered at 6 p.m., but the mahazar which is allegedly prepared in the course of investigation is, the time recorded is 5.30 p.m, which is much prior to the registration of the crime. This itself indicates falsity in the allegations made against the petitioners, it is submitted. 6. It is also pointed out that an Advocate Commissioner had filed an affidavit in the writ petition , a copy of which is Crl.M.C.No.349 of 2006 4 marked as Annexure-II and in the said affidavit he had stated how the commissioner was prevented from discharging his duty, under orders of this court. It is stated that on 1.5.2003, the inspection at 10 a.m. the Advocate Commissioner and the petitioners had gone to the spot for measuring the work as directed by this court, but from the right beginning there was obstruction. Though he explained that he was appointed by the High Court to inspect the headquarters compound. 7. It is also stated in the affidavit by Commissioner that the Hawildar questioned the Commissioner on what authority the measurement was taken and in spite of the explanation given that he was the Commissioner appointed by the High Court for inspection. The entry of the first petitioner was entered in the register as “trespasses”. It is also averred in the affidavit that certain police officials who are named in the affidavit had intimidated the Commissioner stating that no inspection would be permitted even if it is ordered by the High Court, unless it is permitted by their higher officials. In the affidavit it is further stated that petitioners were taken away by force to the jeep and taken to Adoor Police Station at 4.30 p.m. When the Advocate Commissioner and others tried to Crl.M.C.No.349 of 2006 5 follow them, police officials prevented them from doing so. 8. It is also stated in the affidavit of the Commissioner that nobody would be permitted to leave the compound or even to make a phone call. The Advocate Commissioner, surveyor, supervisor, the driver were all wrongfully restrained and confined by the police and held captive for about 4 ½ hours till 9 p.m. on the said day at the police station. On the above allegations and also there is other allegations the Commissioner requested the court to initiate appropriate action against police officers for the obstruction and also for the wrongful confinement etc. 9. Learned counsel for petitioners submitted that this court has initiated suo motu contempt proceedings against the officials and the matter is pending. But in the meanwhile, the proceedings in the criminal case registered against petitioners had continued. But, the first petitioner had sent a complaint to the DGP. Annexure A3 is a letter sent by the Principal Secretary to the first petitioner with reference to which complaint made by the first petitioner regarding intimidation, criminal conspiracy, assault, wrongful confinement, manhandling by police personnel etc. In the said letter it is Crl.M.C.No.349 of 2006 6 informed that the matter is being examined in consultation with DGP and the Managing Director, KPHCC Ltd. 10. But, the police did not take any action on the basis of the complaint given by the first petitioner. To his knowledge, not even a crime is registered on a complaint filed by the Advocate Commissioner. But a false case is registered as a counter blast to the allegations made against police officials including Dy.S.P., it is submitted. In the light of the facts stated, it will be clear that no trespass or any other offences were committed by the petitioners, it is submitted. 11. On hearing both sides, and on going through the various documents produced appears that the entry of petitioners in the place of occurrence was not with any intention to commit any offence or to insult or intimidate or annoy any person who is in possession of the property. It also appears that it is unlikely that when all the police officials were at the place of occurrence, an advocate and his client would dare to make such a high handedness right in front of such officials. It is also to be noted that their entry was permitted by the Advocate Commissioner for assisting him and they were measuring the property. Crl.M.C.No.349 of 2006 7 12. It appears from the affidavit filed by the Advocate Commissioner that petitioners were present in the spot along with the Commissioner for the purpose of carrying out the work as directed by the High Court. Their presence would be essential for carrying out the work to the satisfaction of Commissioner as directed by the High Court. In the light of the discrepancy pointed out with respect to the preparation of a mahazar in relating to the police uniform, the complaint sent to the DGP by the first petitioner, the action sought for by the Advocate Commissioner against high handedness of the police against him the various other facts and circumstances pointed out by the learned counsel for the petitioner, I am satisfied in the interest of justice the proceedings initiated against petitioners have to be quashed. 13. The genuineness of the complaint also appears to be doubtful while considering the circumstances under which it is registered and investigated into. Malafides may also be read from the face of records since no crime is registered on the basis of a complaint made by the first petitioner to the DGP. When cognizable offences are alleged normally a crime will be registered but the reason for failure to register the crime is not Crl.M.C.No.349 of 2006 8 explained. As learned counsel for petitioners would submit, this may be an experimental case registered as a counter blast to the allegations which might be raised against police. Taking all these circumstances into consideration, I find that the proceedings initiated against petitioners have to be quashed to secure ends of justice. In the result the following order is passed. The charge sheet Annexure-IV and further proceedings against petitioners in C.C.845/2004 are quashed. Petition is allowed. K.HEMA, JUDGE cms