IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 Crl.MC.No. 53 of 2004(B) ------------------------ ST.392/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER: ACCUSED A1 & A2 --------------------------- 1.KOTTOOR B.GOIPALAKRISHNA PILLAI S/O. BHASKARA PILLAI, AGED 76 RESIDING AT BLUE GATE, T.C.22/108 PAIPPINMOODU, PERRORKADA VILLAGE. 2. KRISHNAN @ KITCHU, S/O. GOPALAKRISHNA PILLAI, AGED 29, RESIDING AT BLUE GATE, T.C.22/108, PAIPPINMOODU, PEROORKADA VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL SRI.T.A.PRASANTH RESPONDENTS: COMPLAINANT ------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION HIGH COURT OF KERALA, ERNAKULAM. 2. RAMAKRISHNAN NAIR, S/O. NEELA KANDAPILLAI, RESIDING AT T.C.10/63 PAIPPINMOODU PERRORKADA VILLAGE. BY ADV. M/S M.N.S & ASSOCIATES. FOR R2 R1 BY PUBLIC PROSECUTOR SRI C.M. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.257/04 IN CRMC 53/2004 DISMISSED. 22-5-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C.No.53 of 2004 ---------------------------------------------- Dated, 22nd May 2008. ORDER This is a petition filed under section 482 of Cr.P.C. with a prayer to quash Annexure III final Report and the proceedings pursuant to S.T. No.392 of 2002 pending before the Judicial First Class Magistrate Court-II, Thiruvananthauram. According to the petitioners, no offence is disclosed against them and the crime is instituted with ulterior motive for wrecking vengeance against the petitioners. 2. I have heard the learned counsel for the petitioners as well as the learned Public Prosecutor. 3. Annexure III is the Final Report filed by the Additional Sub Inspector of Police, Peroorkada in Crime No.161/2002 of the Peroorkada police station for the offences punishable under sections 341, 323 and 34 of IPC. The above crime is registered on receiving Annexure I petition in the police station. As per the versions contained in Annexure I petition, the Ist petitioner is residing in the neighbourhood of the de facto complainant Crl.M.C.53/04 -:2:- who is working in the Income Tax Department and that when the de facto complainant was going to his house in a scooter from office during lunch break to have his meals, he was pulled down by the Ist petitioner along with seven other identifiable persons and committed bodily assault on him on 8-5-2002 at 1.10 p.m. As per Annexure A1 complaint, the Ist petitioner assaulted him by uttering abuses. It is also the case of the complainant that he was threatened that the first petitioner will go to the extent of causing harm to the de facto complainant by entering into his house. According to the de facto complainant, when he was attempting to go to his house by taking his scooter, the first petitioner fisted on his back by uttering abuses. In Annexure A1 complaint, it was specifically stated that the first petitioner was inimical towards the de facto complainant as he procured a witness to testify the raid conducted by income tax officials in the house of the first petitioner about two years back. It is also stated by the de facto complainant that he is a signatory to the complaint made against the Crl.M.C.53/04 -:3:- first petitioner before the Bar Council of Kerala. So, according to the de facto complainant, the incident has taken place as a calculated move due to prior enmity. On the basis of annexure I complaint, crime No.161/2002 of Peroorkada police station was registered for the offences punishable under sections143, 147, 149, 323 & 294(b) of IPC. In pursuance of the registration of the crime, investigation was undertaken by Peroorkada police which resulted in Annexure III Final Report. As per the Final Report, there are only two accused who are the petitioners herein and the offences charged are under sections 323 and 341 of IPC. The learned counsel submitted that there is glaring difference regarding the allegations contained in the Final Report and in Annexure-I complaint. Even according to Annexure I complaint, more than two persons were involved and hence, initially, besides the substantial offences, crime was registered for the offences under sections 143, 147 and 149 of IPC, but subsequently, except the substantial sections, other sections were deleted and only the petitioners were arrayed as Crl.M.C.53/04 -:4:- accused. The counsel submitted that no wound certificate is produced by the police even though investigation was conducted by them. Therefore, as such, no offence under section 323 will lie against the petitioners. It is also submitted by the counsel that the 2nd petitioner's name is not mentioned in Annexure A1 complaint. It is pointed out by the counsel that if actually the 2nd petitioner who is the son of the 1st petitioner was involved in the crime, his presence could have been easily identified by the de facto complainant as they are close neighbours. So the non-mentioning of the name of the 2nd petitioner itself is sufficient to show that it is a false case and his name is included without any basis and as a result of an afterthought. So, the entire case is a false one foisted against the petitioners to wreck vengeance on them. 4. The learned Public Prosecutor opposing the averments made by the learned counsel for the petitioners submitted that Annexure I complaint is filed on the date of incident itself. It is submitted by the Public Prosecutor that Crl.M.C.53/04 -:5:- several other offences were alleged to have committed, but after investigation, the police has found that offences under sections 323 and 341 are disclosed and hence they filed report to that effect. It is also pointed out by the learned Public Prosecutor that during investigation, it is revealed that the petitioners only are involved in the commission of the offences and no others were involved in the said incident and therefore the report is filed only against the petitioners. 5. I have gone through Annexure-I complaint, Annexure-II FIR and Annexure-III Final Report. The first petitioner is a practising lawyer who is now at the age of 79 and the allegation against him is that he had committed offences due to prior animosity towards the de facto complainant. The glaring difference regarding the version that is contained in Annexure I complaint and the Final Report shows the falsity of the allegations. According to Annexure I complaint, the alleged incident took place at 1.10 p.m. on 8-5-2002 and according to the complainant, altogether 8 persons were involved in the incident and regarding that Crl.M.C.53/04 -:6:- aspect, he has no doubt at all. But in the Final report the police came to the conclusion that only the petitioners are involved in the incident. So it is crystal clear that the de facto complainant has a tendency to embellish a case against the petitioners. It is also an undisputed fact that though offence under section 323 of IPC is alleged against the petitioners, no wound certificate is produced by the police and even the de facto complainant has no case that he had undergone any treatment for the alleged assault. If that be so, even if the trial is allowed to proceed except the interested version of the de facto complainant, there may not be any substantial evidence to substantiate the allegation under section 323. As pointed out earlier, the name of the second petitioner is not mentioned in Annexure-1 complaint. It is a fact that the de facto complainant and the petitioners are residing very adjacent and, had the second petitioner involved in the alleged incident, the de facto complainant would have mentioned his name in the Annexure I complaint itself. But when the police filed the final report, his name is Crl.M.C.53/04 -:7:- incorporated. Therefore, the second petitioner's name is arrayed in the Final Report as an afterthought. 6. The learned counsel for the petitioners invited my attention to Section 95 of the IPC which is a section covered by Chapter IV of IPC deals with General Exceptions, which says: “95. Act causing slight harm.- Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm”. On the strength of section 95, the learned counsel submitted that in the present case, even according to the de facto complainant, he had not undergone any treatment and no wound certificate is produced even by the police. Therefore, the so called act alleged against the petitioners are saved by section 95 of Chapter IV of the IPC and therefore the proceedings against the petitioners may be quashed. Crl.M.C.53/04 -:8:- 7. In Annexure A1 complaint as well as Annexure III Final Report, it is stated that the motive alleged for the commission of the offence is with respect to an incident taken place two years back as there was a raid in the house of the first petitioner and to substantiate the said raid, the de facto complainant procured a witness and therefore, the petitioner/accused was maintaining inimical attitude towards the de facto complainant and the alleged incident has taken place because of this animosity. Even according to the de facto complainant and the police, the said raid has taken place two years back and the present allegation is with respect to the offence alleged to have taken place on 8-5- 2002 and there is a long interval between the date of incident and the so called raid etc. Besides the above, going by the allegations contained in Annexure I report, it can be seen that there is a tendency on the part of the de facto complainant to make embellishment so as to bring the petitioners in criminal cases and thereby to harass them. Crl.M.C.53/04 -:9:- 8. Having regard to the entire facts and circumstances involved in the case and all the materials on records produced, I am of the view that continuance of the criminal proceedings against the petitioners will tantamount to abuse of the process of the court and hence, the proceedings are liable to be quashed. 9. In the result, Annexure III Final Report and S.T.No.392/2002 in crime No.161/2002 of Peroorkada Police Station pending on the file of the Judicial First Class Magistrate-II, Thiruvananthapuram and all proceedings thereon are quashed. The Crl.M.C. is allowed. V.K.MOHANAN, JUDGE. kvm/- Crl.M.C.53/04 -:10:- V.K.MOHANAN, J. No.... Judgment/Order Dated: