IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.MC.No. 401 of 2008() ------------------------ CMP.991/2003 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA C.C.NO.171 OF 2004 OF J.F.C.M, ERATTUPETTA .................... PETITIONER(S): ACCUSED NOS.4,5 & 7: ----------------------------------- 1. MOHAN, AGED 45 YEARS, LAKSHMI BHAVAN, KURISINGAL, KANJIRAPPALLY. 2. NISSAM, AGED 40 YEARS, S/O. PAREED, CHOKKATTUVEETTIL, KADUVAMUZHI, VAKAPARAMBU BHAGOM, ERATTUPETTA. 3. HARIKRISHNAN, S/O. SASIDHARANPILLA, THAMARASSERIL, KATHALANGALPADY,CHIRAKADAVU EAST PO KANJIRAPPALLY. BY ADV. SRI.JOY GEORGE SMT.PRAICY JOSEPH RESPONDENT(S): COMPLAINANT: --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABDUL MUTHALIBH, AGED ABOUT 60 YEARS, S/O. MUHAMMED, KOLEDATH HOUSE, ANAYILAPPU KARA, THEVARUPARA, ERATTUPETTA. PUBLIC PROSECUTOR SRI.S.U.NAZAR SRI.GEORGE MATHEW FOR R2 SRI.SUNIL KUMAR A.G FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.401 of 2008 ------------------------------------- Dated this the 29th day of September, 2008 ORDER Petitioners are accused 4, 5 and 7 in a prosecution pending before the learned Magistrate alleging offences punishable, inter alia, under Sections 447 and 427 I.P.C. They have come to this Court with a prayer that the powers under Section 482 Cr.P.C may be invoked to quash the proceedings against them. 2. About an alleged incident which took place on 29.11.2001 at about 8.30 p.m, allegations and counter allegations have been raised by the rival contestants. Crime No.443 of 2001 was registered at the Erattupetta Police Station alleging commission of offences by the complainant herein and others. Crime No.444 of 2001 was registered on the basis of the complaint filed by the complainant herein and the petitioners herein were alleged to be the accused persons. Both crimes were registered on 30.1101 and investigated. In Crime No.443 of 2001 a positive final report/charge sheet was filed; whereas in Crime No.444 of 2001, a negative final report/refer report was filed. The learned Magistrate accepted the refer report and that obliged the complainant herein to file a private complaint on Crl.M.C. No.401 of 2008 2 20.02.2003. On that complaint, cognizance has been taken against accused 1 to 7. Accused 1 and 2 approached this Court with a similar Crl.M.C seeking invocation of the powers under Section 482 Cr.P.C to quash the prosecution in so far as it relates to them. That petition was dismissed as per order dated 20.09.07 in Crl.M.C.No.2992 of 2004. The petitioners have taken up the fight from there and they have cnow ome to this Court on 25.01.08 to quash the prosecution in so far as it relates to them. 3. The learned counsel for the petitioners contends that the allegations against them are totally false and incorrect. The police had already conducted a detailed investigation. They have filed a negative final report. In the final report, after such exhaustive investigation, specific findings have been reached by the police against the complainant. In these circumstances the present attempt made by the complainant is not justified. 4. It is next contended that the allegations are inherently improbable. The complainant had suffered no injury and that must again convey to the Court the falsity and improbability of the allegations. If the incident as alleged by the complainant had taken place, it was very unlikely that he would not have suffered Crl.M.C. No.401 of 2008 3 any injury, it is contended. The counsel also relies on the circumstance that civil litigation has been initiated and some decision has been rendered in favour of the complainant. In any view of the matter, the petitioners do not deserve to stand the trauma of a criminal trial. In the light of the decision in Adalat Prasad v. Rooplal Jindal (S.C) [2004(3) KLT 382], they cannot claim dropping of the proceedings. In these circumstances they have no go other than to come to this Court and claim premature termination by invoking the jurisdiction under Section 482 Cr.P.C, submits the learned counsel for the petitioners. 5. The learned counsel for the complainant vehemently opposes the application. The learned counsel submits that the petitioners have no bona fides at all. They have now come before this Court after the attempt by accused 1 and 2 to quash the proceedings has failed by order dated 20.09.07 in Crl.M.C.No.2992 of 2004. The learned counsel for the complainant submits that the mere fact that the police have obliged the petitioners by filing a charge sheet in Crime No.443 of 2001 and a refer report in Crime No.444 of 2001 cannot now deliver any advantage to the petitioners. The counsel points out that the learned Magistrate had recorded the sworn statement of Crl.M.C. No.401 of 2008 4 the complainant and 2 other witnesses before cognizance was taken. Reference to the civil litigation is without any merit as the order secured from the trial court has been set aside before the appellate court and the matter has been remanded back to the trial court. The challenge against the order of remand has been turned down already, it is further pointed out. 6. It is further reported that the final report filed in Crime No.443 of 2001 had resulted in registration of C.C.No.510 of 2002 in which trial has already been completed and the accused have been found not guilty and acquitted. Against that, a revision petition has been filed and the same is pending before this court, it is further submitted. 7. I have considered all the relevant circumstances. At the very outset, I must remind myself of the nature, quality and contours of the jurisdiction of this Court when called upon to invoke and exercise the extraordinary inherent jurisdiction under Section 482 Cr.P.C. It would be not possible - nay impermissible, for this Court to attempt to resolve the disputed questions of facts while exercising the jurisdiction under Section 482 Cr.P.C. I need only note that the allegations and counter allegations have been raised by the rival contestants. Both had Crl.M.C. No.401 of 2008 5 filed complaint before the police on the very next day after the occurrence ie. 30.11.2001. The allegations on one side have been accepted by the police while the allegations raised by the others have been turned down by the police. It is, in these circumstances, that the learned Magistrate had taken cognizance of the offences alleged against the accused persons in this case on the basis of the subsequent private complaint filed by the complainant. The learned counsel for the petitioners has read over to me the complaint filed by the complainant, sworn statements of the complainant and two witnesses recorded before the Magistrate and the negative final report filed by the police. I have also been taken through the other relevant materials. Suffice it to say that on an anxious consideration of all the relevant circumstances, I am not at all persuaded to agree that there are any compelling reasons which can persuade this Court to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C. I do take note of the fact that the petitioners have come to this Court to quash this case, ie. C.C.No.171 of 2004 only after the attempt by accused 1 and 2 to quash the proceedings had failed by order dated 20.09.07 in Crl.M.C.No.2992 of 2004. I am satisfied that this is an eminently Crl.M.C. No.401 of 2008 6 fit case where the petitioners must be directed to advance all their contentions in the proceedings to be held before the learned Magistrate and claim appropriate relief. 8. In the result: i) This Crl.M.C is, in these circumstances, dismissed; ii) There shall be a direction to the learned Magistrate to dispose of C.C.No.171 of 2004 as expeditiously as possible - at any rate, within a period of 4 months from the date on which a copy of this order is placed before the learned Magistrate. The learned counsel for the petitioners submits that if personal appearance of the accused were to be insisted by the learned Magistrate on all dates of posting, it would cause great hardship and loss to the petitioners. The petitioners face allegations only for summons offences and I find no reason why the learned Magistrate should not invoke the jurisdiction under Section 205/317 Cr.P.C to exempt the accused persons from personal appearance. Their personal presence need be insisted only if further progress of the case so demands. Sd/- (R.BASANT, JUDGE) rtr/- /true copy/ P.A to Judge/