IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH DECEMBER 2007 / 27TH AGRAHAYANA 1929 Crl.MC.No. 5254 of 2003() ------------------------- ST.901/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... PETITIONER: ACCUSED. -------------------- 1. SRI.S.RAMAKRISHNA SHARMA, DIRECTOR, THE TRAVANCORE RUBBER AND TEA CO.LTD., PLANTATION HOUSE, PATTOM. PALACE P.O. THIRUVANANTHAPURAM 695 004. 2. SRI.N.SIVATHANU PILLAI, DIRECTOR, THE TRAVANCORE RUBBER AND TEA CO.LTD., PLANTATION HOUSE, PATTOM PALACE P.O. THIRUVANANTHAPURAM 695 004. 3. SRI.N.BOOTHALINGAM, DIRECTOR, THE TRAVANCORE RUBBER AND TEA COMPANY LIMITED, PLANTATION HOUSE, PATTOM PLACE P.O., THIRUVANANTHAPUAM 695 004. 4. SRI.S.LAKHSMANA SARMA, DIRECTOR, THE TRAVANCORE RUBBER AND TEA COMPANY LTD., PLANTATION HOUSE, PATTOM PLACE P.O. THIRUVANANTHAPURAM 695 004. 5. SMT.LAKSHMI, DIRECTOR, THE TRAVANCORE RUBBER AND TEA COMPANY LTD., PLANTATION HOUSE, PATTOM PLACE P.O., THIRUVANANTHAPURAM 695 004. 6. SMT.MEENAKSHI AMMAL, DIRECTOR, THE TRAVANCORE RUBBER AND TEA COMPANY LTD., PLANTATION HOUSE, PATTOM PLACE P.O. THIRUVANANTHAPURAM 695 004. 7. SMT.S.GANGA AMMAL, DIRECTOR, THE TRAVANCORE RUBBER AND TEA COMPANY LTD., PLANTATION HOUSE, PATTOM PALCE P.O, THIRUVANANTHAPURAM 695 004. BY ADV. SRI.JOSEPH KODIANTHARA SRI.MATHEWS K.UTHUPPACHAN CRMC 5254/03 2 RESPONDENTS: COMPLAINANTS. -------------------------- 1. INSPECTOR OF PLANTATIONS, NEDUMANGADU. 2. CHIEF INSPECTOR OF PLANTATIONS, PUNALUR. 3. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY Sr. PUBLIC PROSECUTOR SRI C.M. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 5-10- 2007, ALONG WITH CRMC NO. 5255 OF 2003 THE COURT ON 18-12-2007 PASSED THE FOLLOWING: CRMC 5254/03 2 ORDER ON CRL.M.A NO.12034/2003 DISMISSED. 18-12-2007 SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C. Nos. 5254 & 5255 of 2003-B ---------------------------------------------- Dated, 18th December, 2007. ORDER Crl.M.C. No. 5254/2003 is filed with a prayer to quash the complaint in S.T.No.901/2003 pending before the Judicial First Class Magistrate -I, Punalur and Crl.M.C. No.5255/2003 is also for quashing the complaint in S.T.No.900/2003 pending before the same court. Since the reliefs sought for in both these Crl.M.Cs are similar, the facts and circumstances involved are more or less identical and especially the parties are the same, these matters are heard together and being disposed of by this common order. 2. The petitioners/accused, who are 7 in number in Crl.M.C.No.5254/2003, are the Directors of Travancore Rubber & Tea Co. Ltd., Plantation House, Pattom Palace P.O., Thiruvananthapuram. The company inter-alia owns the Ambanad estate, Kalthuritty in Kollam district, which is principally planted with tea and rubber which has an extent of about 1000 hectares. The Inspector of Plantations, Nedumangad filed annexure-A Crmc 5254 & 5255/03 -: 2 :- complaint against the above Directors dated 14-3-2003 under section 39 of the Plantation Labour Act, 1951 (Central Act 69 of 1951) (hereinafter referred to as `the Act'), and Rules,1959 upon which S.T.No.901/2003 is instituted alleging that the petitioners/accused who are the employers, failed to rectify the defects noted by the complainant and thereby committed the offence punishable under section 36 of the above Act. Crl.M.C. No.5255/2003 is also filed by the same persons with a prayer to quash annexure A complaint dated 14-3-2003 in S.T. No.900/2003 on the file of the Judicial Magistrate of the First Class-I, Punalur wherein the offence alleged against them is also one punishable under Section 36 of the Act. In both the cases, the Ist respondent inspected the Ambanad Estate owned by the petitioners at about 9.30 a.m. on 17-9-2002 and on detecting certain defects, issued annexure-B1 Inspection order-cum-Written order dated 30-9-2002. In both these cases, the Manager of the company issued annexure B2 reply dated 24-10-2002 to Crmc 5254 & 5255/03 -: 3 :- annexure B1 notice dated 30-9-2002 of the Ist respondent and on receipt of annexure B2 reply, the Ist respondent issued annexure C1 order dated 1-1-2003 to all the petitioners, by which they were directed to take immediate steps to rectify the defects noted therein and to intimate the facts to his office within 10 days from that order. In the said order, the petitioners were informed that the failure to comply with the orders are offences punishable under the above Act and Rules and they were further warned that if they failed to comply with the orders, prosecution steps would be taken without further notice on the presumption that they had nothing to say in the matter. In both the cases, annexure C2 reply dated 20-1-2003 was sent to the Ist respondent by the Company Secretary. Thereafter, again on 13-2-2003 at 10 a.m., the Ist respondent further visited and inspected the estate and found that certain defects which noticed earlier and ordered to rectify on the basis of which annexure D1 Show Cause/Prosecution Notice Crmc 5254 & 5255/03 -: 4 :- dated 21-2-2003 was served on all the petitioners to which annexure D2 reply dated 3-3-2003 was sent by the Chairman of the company. No other petitioners issued any such reply. As the defects noticed and brought to the notice of the accused were not rectified, the Ist respondent preferred annexure-A complaint before the Judicial Magistrate of the Ist Class-I, Punalur for the above offences. The only factual variation among the two cases is with respect to the site (place of occurrence) at which the inspection was conducted by the Ist respondent on 17-9-2002 and 13-2-2003. In Crl.M.C. No.5254/2003, the allegations are with respect to the failure in rectifying the defects noticed in workers' residential Line Nos.82, 92 and 55 of Ambanad Estate owned by the company. But in the case of Crl.M.C.5255/2003, the defects were noticed with respect to the workers' residential Line Nos. 60, 59, 68, 92 and 85 of the very same Ambanad Estate owned by the company of which, the petitioners are the Directors. Except the above aspects, all the factual and legal Crmc 5254 & 5255/03 -: 5 :- positions involved in those two cases are identical. 3. Going by annexure I complaint and annexure B1 inspection order-cum-written order, it can be seen that on 30-9-2002, the Ist respondent had conducted an inspection in the above sites and he had detected 11 defects mentioned in annexure B1 and the accused were directed to cure the defects in the manner stated in annexure B1. Since the reply given by the Manager was not satisfactory, the Ist respondent has sent annexure C1 inspection order-cum-written order dated 1-1-2003 to all the petitioners being the Directors of the company to which the Secretary of the company issued annexure C2 reply dated 20-1-2003. Since the defects noted and brought to the notice of the petitioners were not cured as directed, the Ist respondent then issued annexure D1 Show cause/Prosecution notice dated 21-2-2003 to all the petitioners. Thereafter, according to the complainant, though the Chairman of the company sent annexure D2 reply, the same was not satisfactory as the defects pointed Crmc 5254 & 5255/03 -: 6 :- out were not rectified and the same still exist. In the above circumstances, annexure A complaint was filed by the Ist respondent on the basis of which cognizance was taken and S.T.Nos.900/03 and S.T.No.901/2003 were instituted in the Judicial First Class Magistrate Court-I, Punalur against the petitioners/accused. In the above Crl.M.Cs, the petitioners/accused are seeking an order quashing the above complaints and all proceedings thereon. 4. I have heard extensively the learned counsel appearing for the petitioners, the Director General of Prosecutions, and the learned Public Prosecutor. 5. The learned counsel took me through various documents and other materials available on records and also through various provisions contained in the Plantations Labour Act 1951 (Act 69/51) and Rules 1959. After inviting my attention to section 2(k)(ii) of the above Act, which defined “worker” the learned counsel submitted that the above Act is not applicable in the present case as Crmc 5254 & 5255/03 -: 7 :- the workers herein are getting monthly wages more than Rs.750/-. In support of the above contention, counsel for the petitioners very much relied on the documents viz., annexure E1 to E6; annexure F1 and F2 circulars issued by the Association of Planters of Kerala. Annexure-G is another document produced along with the Crl.M.Cs. which is an order No.G1/20739 dated 20-9-97 issued by the Labour Commissioner, Thiruvananthapuram with respect to a dispute arose out of claim for medical benefit for the workers in Plantation. The questions, related to the jurisdiction and powers of this Court under section 482 of Cr.P.C to accept and act upon the documents filed in these proceedings, especially which are not relied or admitted by the prosecution, are bearing several legal questions and far reaching consequences which will be considered later. 6. In these cases, it is relevant to note that in order to accept the contention of the petitioners that the workers of their Plantation will not come under the Crmc 5254 & 5255/03 -: 8 :- purview of section 2(k)(ii) of the Act, primarily, the petitioners have to establish that their workers are getting monthly wages of more than Rs.750/-. The subject matter of the present two cases are that the workers those who are residing in Line Nos.82, 92 and 55 which is the subject matter of Crl.M.C. No.5254/2003 and Line No.60,59, 68, 92 and 85 which is the subject matter of Crl.M.C.5255/2003 are not provided with the facilities provided as per the Rules which are mentioned in annexures B1, C1 and D1 notices. In these proceedings, this Court is not in a position to come into a conclusion as to who are the workers residing in those lines and what are the wages which are being received by them from the petitioners and all those facts which are disputable can be resolved only through evidence at the time of trial. The documents mentioned above which are relied on by the petitioners are not helpful for them to come into a conclusion that workers residing in the aforesaid lines of the estate are not coming within the meaning of Crmc 5254 & 5255/03 -: 9 :- “workers” defined in the Act. 7. Now let us examine the position of law regarding the scope of the powers of this Court to accept and act upon the documents produced by the petitioners/accused in a proceedings under section 482 of Cr.P.C to quash the complaint against them. It is settled that the inherent jurisdiction can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. The powers under section 482 of Cr.P.C. will be exercised very sparingly, cautiously and only on satisfaction that the proceedings in lower court amounts to abuse of the process of court or to prevent vexatious litigation. Even during such enquiry, the scope is very limited and it shall be confined to see whether the allegations as such and available materials prima facie constitute an offence. The sufficiency of those materials and its correctness is beyond the scope of examination under section 482 of Cr.P.C. A Division Bench of this court in Alexander v. C.B.I (2006 Crmc 5254 & 5255/03 -: 10 :- (2) KLT 240), though therein the challenge was against framing of charge, this Court has held that at the time of framing of charges, Court need consider only whether there is prima facie case or not. It is also held: “However if the documents relied on by the prosecution negatives the case of the prosecution, and there is no prima facie case, no charges need be framed and can be discharged”. In the present case, the petitioners approached this Court to quash the complaint as such and to substantiate the above prayer they have produced certain documents. Framing of charge is a process by which the trial being commenced. Even according to the above decision, the trial court has no jurisdiction to look into the documents produced by the defence, but the court has to confine only to the documents relied on by the prosecution. If the documents relied on by the prosecution negatives the case of the prosecution, no charges need be framed, consequently the accused can be discharged. Otherwise, Crmc 5254 & 5255/03 -: 11 :- if the admissible facts through the admitted documents are not capable for constituting an offence or negatives the prosecution case as such, the court can discharge the accused. From the above it is crystal clear that even at the time of framing charge, the trial court , even though it is the fact finding authority, is not bound to look into the documents produced by the defence. If that be so, in a proceedings under section 482 of Cr.P.C., the High Court is not expected to admit and act upon the documents produced by the defence which are not relied and produced by the prosecution, for quashing the proceedings pending against them. 8. In a Full Bench decision in State of Orissa v. Debendra Nath Padhi (2005 (1) KLT 80 (SC), the apex court has held that the accused has no right to produce any material at the time of framing of charge. In paragraph 5 of the said decision, the apex court has held: “On the other hand, it was contended on behalf of the State that the observations made in Satish Mehra's case run counter to the views Crmc 5254 & 5255/03 -: 12 :- expressed by this Court in large number of decisions, it amounts to upsetting well settled legal propositions and making nugatory amendments made in Code of Criminal Procedure from time to time and would result in conducting a mini trial at the stage of framing of charge or taking cognizance. Such a course would not only be contrary to the object and the scheme of the Code but would also result in total wastage of the court time because of conducting of two trials, one at the stage of framing charge and the other after the charge is framed. It was contended that on true construction of S.227 of the code only the material sent by prosecution along with the record of the case and the documents sent along with it can be considered by the Trial Court at the time of framing of the charge. The accused at that stage has no right to place before the court any material”. That being the position, I am of the view that the accused are not entitled to produce documents, which are not placed or relied on by the prosecution in trial, in a proceedings under section 482 of Cr.P.C.and to press into service of those documents for quashing the proceedings pending against them in the court below, unless there are compelling reasons. In the decision reported in Minakshi Bala v. Sudhir Kumar {(1994) 4 SCC 142}, Crmc 5254 & 5255/03 -: 13 :- the apex Court in paragraph 7 of the judgment held: ”If charges are framed in accordance with Section 240 Cr.P.C on a finding that a prima facie case has been made out - as has been done in the instant case - the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 Cr.P.C. and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 Cr.P.C the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 Cr.P.C; nor would it be justified in invoking its inherent jurisdiction under Section 482 Cr.P.C to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence”. In the present case, the stage of framing charge is not reached. At the threshold of filing the complaint, Crmc 5254 & 5255/03 -: 14 :- petitioners approached this Court under Section 482 of Cr.P.C to quash the proceedings. In the above decision, the Apex court has held that the High Court will not be justified in invoking its inherent jurisdiction under section 482 of Cr.P.C. to quash the same except in those rarer cases where forensic exigencies and formidable compulsions justify such a course. Going by the documents, other than the documents relied on by the complainant/prosecution, the subject matter of those documents and its applicability are only subject to proof and the same are still liable to be disputed until strictly proved. So it cannot be said that the case in hand is a rare case where forensic exigencies and formidable compulsions justify to act upon such course. Therefore, the documents of the above nature produced along with the petition under section 482 Cr.P.C. cannot be looked into and acted upon. In the decision reported in State of Bihar v. Rajendra Agrawalla (1996 Crl.L.J. 1372), the Apex Court in paragraph 5 of the judgment has held: Crmc 5254 & 5255/03 -: 15 :- “It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima case is made out. In a recent judgment of this Court to which one of us (Hon.K.Ramaswamy,J) was a member it has been held, following the earlier decision in Mrs.Rupan Deol Bajaj v.Kanwar Pal Singh Gill, (1995) 7 JT (SC) 299: (1995 AIR SCW 4100): “It is thus settled law that the exercise of inherent power of the High court is an exceptional one. Great care should be taken by the High court before embarking to scrutinise the FIR/charge- sheet/compliant. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is concluded and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions Crmc 5254 & 5255/03 -: 16 :- which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence - the court may embark upon the consideration thereof and exercise the power. When the remedy under section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When investigation officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power”. (emphasis supplied) Crmc 5254 & 5255/03 -: 17 :- In the light of the above decision it can be seen that the inherent power of the High Court under section 482 of Cr.P.C. can be used very sparingly and cautiously only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the F.I.R. or complaint together with the other materials collected during investigation taken at their face value do not constitute the offence alleged. Therefore, the prime consideration of this Court should only be whether the exercise of the power to advance the cause of justice or it would be an abuse of the process of the court. As in the case, when the complainant spent considerable time to collect the evidence and place the complaint before the court, the further action should not be short circuited by resorting to exercise inherent power to quash the charge sheet. As stated in the above Crmc 5254 & 5255/03 -: 18 :- decision, the social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. Keeping in mind the above principle, I am of the view that the document of above nature produced by the petitioners cannot be acted upon at this stage and the petitioners are miserably failed to make out a case that the present case is a rarest one where forensic exigencies and formidable compulsions, justify to accept and act upon the documents produced in these proceedings so as to exercise the powers of this court under section 482 of Cr.P.C.in favour of the petitioners. Hence, in the light of the above settled position of law, the documents produced by the petitioners in support of their contention that the workers of the petitioners' estate are not coming under the definition of “workers” cannot be looked into in these proceedings. More over, the disputable fact regarding income of the workers of the estate owned by the petitioners are yet to be ascertained during evidence and Crmc 5254 & 5255/03 -: 19 :- in these proceedings, this Court is not in a position to arrive at a conclusion on such disputed fact as to whether the workers of the petitioners will not come within the purview of “workers”. Therefore, the contentions of the petitioners that their workers will not come within the purview of the definition of “workers” as contemplated by the Act fails. 9. Yet, another contention advanced on behalf of the petitioners is that in the light of annexure-H judgment, no prosecution will lie against the petitioners as the provisions of the Plantation Labour Act and Rules made thereunder are not applicable to Ambanad Estate. It is true that the offence alleged in the case involved in annexure-H judgment is punishable under section 39 of the Plantation Labour