IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 Crl.MC.No. 433 of 2004() ------------------------ C.C.241/03 OF J.F.C.M.-II, KUZHITHURAI FIR IN CRIME NO.35/04 OF PARASSALA POLICE STATION PETITIONER: 2ND ACCUSED: ------------------------ D.W.SATHEESH, PARAYAM VEEDU, PORANCODE, KIRATHOOR POST, VILAVANCODE TALUK, KANYAKUMARI DISTRICT. BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) SRI.K.G.RENGANATH RESPONDENTS: DEFACTO COMPLAINANT & STATE: ----------------------------------------- 1. DR.Y.RAJA RETNAM, S/O. YOHANNAN, T.C.19/1470, THAMALAM, POOJAPURA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.R.T.PRADEEP FOR R1 PUBLIC PROSECUTOR SHRI S.U.NAZAR FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.1970/04 IN CRL.M.C.433/04 DISMISSED 6.6.08 SD/- (M.C.HARI RANI, JUDGE) M.C.HARI RANI,J. ----------------------------------------------------- CRL.M.C.No.433 OF 2004 ----------------------------------------------------- DATED THIS THE 6th DAY OF JUNE, 2008 O R D E R This petition is filed under Section 482 of the Code of Criminal Procedure by the petitioner with a prayer to quash Annexure-D FIR lodged by the Sub Inspector of Police, Parassala Police Station before the Judicial First Class Magistrate's Court-II, Neyyattinkara and all further proceedings taken pursuant thereto as against the petitioner who was the second accused therein. 2. The petitioner has relied on Annexures A to D in support of the allegations made against the respondents, particularly against the first respondent in this petition. Annexure A produced by the petitioner herein is the true copy of the complaint filed by him as the complainant before the Judicial First Class Magistrate's Court-II, Kuzhithurai (Tamil Nadu) filed under Section 138 of the Negotiable Instruments Act and Section 200 Cr.P.C. which is pending before that court as C.C.No.241/03. Annexure B is the true copy of the complaint filed by the petitioner herein before the Superintendent of Police (Rural), CRL.M.C.No.433 OF 2004 -2- Thiruvananthapuram District against the first respondent herein for the alleged threat made by the counter petitioner and his men against the petitioner with the prayer to take action against them and to save the life of the petitioner herein. Annexure C is the true copy of the complaint filed by the first respondent in this petition against his daughter and the petitioner herein before the Judicial First Class Magistrate's Court-II, Neyyattinkara under Section 190(2) and 200 of the Code of Criminal Procedure with a prayer to accept the complaint and to refer the same to S.H.O., Parassala Police Station under Section 156(3) of Cr.P.C. and to proceed accordingly. Annexure D is the photocopy of the FIR lodged before the Judicial First Class Magistrate's Court-II, Neyyattinkara filed by the Sub Inspector of Police, Parassala Police Station against the petitioner herein and another for the offences under sections 379, 465, 468 and 471 read with Section 34 of Indian Penal Code. The prayer in this petition is to quash further proceedings and the investigation of the criminal case lodged against the petitioner who was arrayed as 2nd accused in that FIR which is pending investigation before the concerned police station. 3. Heard the learned counsel appearing for the petitioner and CRL.M.C.No.433 OF 2004 -3- the first accused and also the learned Public Prosecutor appearing for the 2nd respondent in this petition. It is argued by the learned counsel appearing for the petitioner that the present complaint has been filed by the first respondent herein after receipt of the notice in the case proceeded against him under Section 138 of Negotiable Instruments Act with the idea to take it as a defence in the proceedings pending as C.C.No.241/03 before the Judicial First Class Magistrate's Court-II, Kuzhithurai. Subsequently, the first respondent has filed a complaint before the Judicial First Class Magistrate's Court- II, Neyyattinkara alleging offences punishable under sections 379, 465, 468 and 471 read with Section 34 of Indian Penal Code against his own daughter Anitha and the petitioner herein arrayed as accused 1 and 2 respectively. That complaint was forwarded by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure and the FIR was lodged, marked as Annexure D. According to the learned counsel for the petitioner, the first respondent in this petition got the FIR registered against the petitioner herein without any bona fide to create a defence in the case pending against him for the offence under Section 138 of Negotiable Instruments Act before the Judicial First Class Magistrate's Court-II, Kuzhithura. Thus, according CRL.M.C.No.433 OF 2004 -4- to the learned counsel appearing for the petitioner, continuance of the proceedings in Annexure D as against the petitioner is an abuse of process of law which is liable to be quashed under Section 482 Cr.P.C. It is submitted by the learned counsel appearing for the first respondent herein that the prayer in this petition filed under Section 482 of Cr.P.C. will not come under the parameters of that section and there is no abuse of process of law by proceeding investigation of the FIR, Annexure D by the police authorities. In order to substantiate that stand, the learned counsel for the first accused has relied on the decision reported in State of Haryana v. v.Bhajanlal (AIR 1992 SC 604 ). The relevant portion reads as follows: “62. The sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are CRL.M.C.No.433 OF 2004 -5- well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provisions causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons, since human dignity is a dear value of our Constitution. Needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited power exercisable upto unfathamable cosmos. Any recognition of such power will be CRL.M.C.No.433 OF 2004 -6- tantamount to recognition of 'Divine Power' which no authority on earth can enjoy.” Considering the facts and circumstances of this case as also in the light of the above said decision, I find that while considering a petition filed under Section 482 of Cr.P.C., the documents relied on by the parties in the proceedings against them cannot be looked into and powers of investigation of the police authorities in respect of a cognizable offence cannot be curtailed. The disputed facts raised by both parties are yet to be investigated by the concerned police authorities and to be decided by the Magistrate who are empowered as per law to proceed as per the relevant provisions of Cr.P.C. There is nothing inherently improbable to proceed against the FIR pending investigation against the petitioner on the basis of the complaint filed by the first respondent herein. Therefore, I find that there is no merit in this petition and it is dismissed as devoid of any merit. M.C.HARI RANI, JUDGE. dsn