IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WP(C).No. 27541 of 2009(Q) -------------------------- PETITIONER(S): -------------------- V.BIJU, AGED 46 YEARS, S/O.VAMADEVAN, S.N.NIVAS, KAVANAD P.O., KOLLAM-3, NOW WORKING AS ASSISTANT COMMANDANT, A.R.CAMP, KOZHIKODE. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. R.NISHA, D/O.SULOCHANA, SREEPADMAM, T.C.27/927, ATTANI LANE, VANCHIYOOR, THIRUVANANTHAPURAM FROM USHAS PUTHEN VEEDU, KAVANADU P.O., KOLLAM, PIN 691 003. ADV. SRI.D.KISHORE FOR R2 BY PUBLIC PROSECUTOR SRI. SALIM P.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON 08/02/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 27541 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2010. JUDGMENT This is a petition filed under Articles 226 and 227 of the Constitution of India seeking to issue a writ of certiorari to quash Ext. P6 final report and all further proceedings in C.C.1965 of 2006 pending before the Judicial Magistrate of the First Class-II, Kollam and to grant such other reliefs as are found necessary. 2. Petitioner is the first accused in C.C.1965 of 2006 on the file of the JFCM-II, Kollam. The complainant is none other than his wife. She filed a private complaint before the Additional Chief Judicial Magistrate, Thiruvananthapuram against the petitioner and his father alleging offences punishable under Sections 498A and 114 Indian Penal Code. The complaint was sent for investigation under Section 156(3) of Cr.P.C. The crime was registered as Crime No.160 of 2005. While investigation in that case was in progress, it is pointed WPC.27541/2009. 2 out that the defacto complainant approached the Kollam East Police Station and lodged first information statement suppressing the proceedings already pending and got registered another crime as Crime No.458 of 2005 for the offences punishable under Section 498A and 363 IPC. Copy of the FIR is produced as Ext.P3. The Kollam East Police found that the offences had been committed within the jurisdiction of Sakthikulangara Police Station, an therefore transferred the records to that Police Station. Sakthikulangara Police re-registered the crime as Crime No.175 of 2005. Since the petitioner was holding the post in the rank of Deputy Superintendent of Police, the investigation was done by the Deputy Superintendent of Police, Karunagappally and submitted a final report before JFCM-II, Kollam. It is pointed out that during the investigation of Crime No.175 of 2005, the investigating officer came across the fact that there was a crime registered as Crime No.160 of 2005 before the Vanchiyoor Police station regarding the same matter. A report was filed WPC.27541/2009. 3 pointing out that no offence under Section 114 IPC was made out. It is also pointed out that the Dy.S.P., Kurunagappally clubbed Crime No.175 of 2005 and Crime No.160 of 2005 of Vanchiyoor Police Station and commenced investigation. According to the petitioner, that was illegal because there was no transfer of Crime No.160 of 2005 to the Sakthikulangara Police Station. Petitioner approached this court through Crl.M.C.2064 of 2005 to quash Ext.P6 final report. Since the Crime was only at the stage of investigation, this court declined to exercise its jurisdiction in the matter. There was another proceedings regarding the child of the parties and criminal proceedings were initiated alleging kidnapping etc. It is pointed out that a complaint was filed by the complainant before the Kollam East Police Station, which was registered as Crime No.257 of 2003. Again that was transferred to Sakthikulangara Police Station and Crime was re-registered as Crime No.57 of 2003. In that crime, after investigation the investigating officer had filed a refer report. WPC.27541/2009. 4 3. Petitioner would point out that the complainant and her relatives are highly influential and they are continuously harassing and torturing him by filing frivolous and false complaints. It is also pointed out that in the case now pending before the JFCM-II, Kollam, the complainant was able to get a Special Prosecutor appointed and it is unjustifiable and uncalled for. Petitioner would point out that public money cannot be thrown away for the private purpose of a party. Assailing the final report as well as the appointment of the Special Public Prosecutor, this petition is filed. 4. Learned counsel appearing for the petitioner points out that a look at the facts will clearly show that there has been an abuse of the process of court. Complaints are filed one after another alleging the same offence on the same set of facts in different police stations with the sole intention of harassing the petitioner. Petitioner is driven from one place to another to attend the cases. In fact the learned counsel pointed out that on the allegations, it can be WPC.27541/2009. 5 seen that no offences are made out. It is contended that JFCM-II, Kollam was not justified in taking cognizance on the police report, because no offence was made out. At any rate, according to the learned counsel, there was no justification for appointing a Special Public Prosecutor. 5. Per contra, learned counsel appearing for the contesting respondents pointed out that the Special Public Prosecutor was appointed under compelling circumstances and the Government has the power to do so. As far as C.C.1965 of 2006 is concerned, the learned counsel pointed out that trial has already commenced and in the light of said fact, this court may not interfere at this point of time. 6. The question as to whether the allegations made by the complainant are true or not is to be determined after evidence is taken. But one fact seems to be very evident. The complainant has been going on filing one complaint after another in different courts without much justification. It is seen that the averments in almost all complaints are identical and one fails to understand the WPC.27541/2009. 6 purpose of filing several complaints except to harass the petitioner. It could not however be said that in C.C.1965 of 2006 on the basis of the available materials no offence is made out. Whether the offence alleged are established or not is a different question. 7. Even though the appointment of the Special Public Prosecutor may look odd, the Government does have the power to do so and it may be presumed that there was compelling circumstances to appoint a Special Public Prosecutor. One of the reasons may be that the accused is a police officer holding a high rank. Whatever that be, the petitioner can have no grievance regarding that aspect. 8. Further, this court is given to understand that the trial has already commenced and two of the witnesses have been examined. As rightly pointed out by the learned counsel for the contesting respondent, it would be unfair and unjust to interfere at this point of time when the trial has already commenced. WPC.27541/2009. 7 For the above reasons, this writ petition is dismissed. P. BHAVADASAN, JUDGE sb.