Antony N.J. vs State of Kerala

K. Ramakrishnan, J.—This criminal miscellaneous petition was filed by the sole accused in C.C. No. 169/2013 on the file of the Judicial First Class Magistrate Court-II, Kochi, to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called ''the Code'').

It is alleged in the petition that, the petitioner has been arrayed as sole accused in C.C. 169/2013 pending before the Judicial First Class Magistrate Court-II, Kochi. The petitioner was charge sheeted by the Sub Inspector of Police, Palluruthy police station in Crime No. 2811/2012 of Kochi Cusba police station, alleging offences Section 268, 269, 278, 188 of the Indian Penal Code and Section 120(e) of Kerala Police Act. According to the petitioner, he has been falsely implicated by the Sub Inspector of police, Palluruthy police station, due to some personal grudge developed for the police party, who were made to arrive at the place of occurrence, as a result of the petitioner''s request to the police control room through the emergency No. 100. It is alleged in the petition that, on 02.12.2012 at about 11.00 p.m., while he was doing his usual walking along the road, in front of his house near the place of occurrence, the nearby resident by name, Shaji had attacked him. Immediately he dialed police control room by calling them in the emergency No. 100 and they advised the petitioner to contact the nearby Kochi Cusba police station by giving him the telephone number of that police station. As per the advice from the control room, he contacted the Kochi Cusba police, but they replied that, since there is no police jeep available, they are unable to come to the spot, which is about four kilometers away from the station and he was asked to come to the station directly to give complaint. He conveyed the message to police control room and on account of the same, a police jeep came to the spot within fifteen minutes and he was taken to custody and took him to the police station and at about 1.00 a.m., he was released. Next morning he was informed that, Annexure-5 first information report as crime No. 2811/12 of Palluruthy police station of Ernakulam city was registered against him, alleging commission of the offences under Section 268, 269, 278 and 188 of Indian Penal Code and Section 120(e) of Kerala Police Act, alleging that, he had attempted to throw the waste in the public place, so as to cause nuisance to the public. Even when he was taken to the police station, he was abused by the police officials and mis-behaved with him and they did not register any case against the said Shaji, due to influence he had exerted on them. So he sent Annexure-2 complaint to the Kochi City Police Commissioner and he had received Annexure-3 reply stating that, enquiry has been conducted and it was revealed that, both of them were called to the police station and since two crimes were registered, one against the petitioner and other against the said Shaji, they closed the petition and sent Annexure-4 along with Annexure-3 reply. Further he had also sent a petition to the Kochi Cusba police station, Palluruthy, seeking for certain information regarding the registration of the crime under the Right to Information Act and Annexure-6 reply was received along with Annexure-7 copy of General Diary entries maintained in the station on the relevant day and as per the reply and Annexure-7 entries, according to the petitioner, it will be seen that, the witness one Anilkumar a Civil Police Officer, who was said to have been with the Sub Inspector Rajesh, who registered the crime and alleged to have arrested the petitioner was not with him and he was on non-patrolling duty with Sajeev, Assistant Sub Inspector of Police of that police station. So according to the counsel for the petitioner, all these things will go to show that the case of the prosecution is false. He had filed a complaint against the police officers before the Judicial First Class Magistrate, Kochi, and that was dismissed by the learned magistrate under Section 203 of the Code of Criminal Procedure, on the ground that, there was no sanction obtained to prosecute them and he had filed a revision and that is pending before this court. According to him, the documents produced by him will go to show that, it is a fabricated case registered by the police. So allowing the case to continue will amount to abuse of process of court and prima-facie it was shown that, the allegations are not correct. So he has no other remedy except to approach this court, seeking the following reliefs:

i. Quash the Annexure-A5 FIR as well as the investigation of the case in CC No. 169/2013 pending before the Judicial First Class Magistrate Court-II, Kochi.

ii. Stay all further proceedings in CC. No. 169/2013 pending before the Judicial First Class Magistrate Court-II, Kochi.

iii. Pass any order or direction deem fit and proper to the facts and circumstances of this case in the interest and to allow this Crl. M.C.

Heard the learned counsel for the petitioner and learned Public Prosecutor and also perused the case diary file and the general diary maintained in the police station.

The learned Public Prosecutor submitted a statement, of the Sub Inspector of Police, Palluruthy, which reads as follows:

The petitioner is the accused in Cr. 2811/12 under section 268, 278 and 188 IPC and 120(e) of Kerala Police Act of Palluruthy police station. On 02.12.2012, while SI Sri. Rajesh, CPO Sri. Anilkumar K.G. and CPO Sherief on patrol duty got a call from police control room that two persons quarrelling each other at Perumpadappu-Kollassery Road. They rushed to the spot and found the petitioner carrying a plastic kit containing waste and throwing it on the margin of Perumpadappu-Kallassery road near his house and another person one Shaji V.H., aged 39 years, S/o. Hussain, Velipprambu house, Kollassery Road, Konam, Palluruthy who was found quarrelling with the petitioner. The quarrelling was on dumping waste by the petitioner at road side. The waste, the petitioner dumped was that the food materials and others left at the petitioners house where Baptism ceremony of the petitioner''s son was celebrated on the same day. Mr. Shaji was reluctant to hear the police and he was becoming more and more violent and riotous and he was not ready to go home after repeated direction by the police. To avoid untoward incidents the SI had no option, but to proceed with legal action against both the two. So he taken both of them into custody, brought them at police station and registered Cr. 2811/12 under Section 268, 269, 278 and 188 IPC and 120(e) of K.P. Act against the petitioner and Cr. 2812/12 under Section 118(a) of Kerala Police Act against Shaji. After the legal procedures, both of them were released on bail.

The other allegations against the police personnel in the Crl. M.C. are false. While he was bailed out, he was said to shouting to the police of dire consequences. The entries on General Diary bear only the extract and important things. The exact and minute details are not available in the GD. There are no allegations against the police about any other harassment or misbehavior from the part of the police. Hence it is humbly requested that since nothing irregular and illegal action had happened from the part of the police personnel in this regard, the case against the petitioner may be allowed to be tried by the Hon''ble Judicial First Class Magistrate Court-II, Kochi and the Crl. M.C. may be dismissed accordingly.

The counsel for the petitioner submitted that, Annexure-I call details of his mobile phone will go to show that, at about 11.20 p.m., and 11.21 p.m., he had made two calls to the control room emergency No. 100 on 02.12.2012 and it was on that basis that the police came to the place and instead of taking action against Shaji, since he had brought the police to the place during the odd hours of the day, he has been falsely implicated in the case. Further, the documents produced will go to show that, one of the witnesses said to have been present along with the said Rajesh, the Sub Inspector of police, who registered the crime and filed final report is not with him at that time and it will be seen that, he was on non-patrol duty with Sajeev, one of the Assistant Sub Inspectors of Police of that police station and not with the Sub Inspector of Police Shri. Rajesh, as according to him he is a witness to the incident. Further there is no other witnesses questioned or cited to prove that, the accused had thrown any waste in the public place as alleged. So according to him, it is a false and fabricated case and the same is liable to be quashed.

On the other hand, the learned Public Prosecutor submitted that, in the General Diary, it is not necessary that, all the minute things will have to be entered by Rajesh, Sub Inspector of Police, who had arrested the petitioner and registered the crime. The fact that, a case was registered is in away admitted by the petitioner as well. Further, the discrepancy in the General Diary has to be explained by the investigating officer and it is matter for evidence. It is for him to explain as to how Anilkumar, the Civil Police Officer, who was shown as witness, happened to come there and witness the incident etc., Since it is a matter to be considered on the basis of evidence, it is not a fit case to invoke the power under Section 482 of the Code of Criminal Procedure to quash the proceedings.

It is an admitted fact that, the petitioner has been arrayed as sole accused in Annexure-5 first information report registered as Crime No. 2811/2012 of Palluruthy police station and final report was filed and it is pending as C.C. No. 169/13 on the file of the Judicial First Class Magistrate Court-II, Kochi. It is true that in Annexure-7 General Diary, original of which is also been perused by this court, it is noted that on 02.12.2012 during night, Shri. Anilkumar, Civil Police Officer was deputed for duty along with Sajeev, the Assistant Sub Inspector of Police of that police station for non-patrolling duty. The fact that, police came to the spot, on the basis of the information given by the petitioner and a crime was registered was not in dispute. Further it is true that, except the police constable and the Sub Inspector of Police, none were arrayed as witness in the case. In Annexure-6 answer to the queries by the petitioner under the Right to Information Act, it was mentioned that, since it was during midnight, that the incident happened, except police officials none were available as witness and except the police officials none were cited as witness to prove the incident. It is also seen from Annexure-4 that, another crime was registered against Shaji, as Crime No. 2812/12 of the same police station, as he was causing nuisance in the public place, under the influence of alcohol and it was on that basis the petition given by the petitioner to the Assistant Police Commissioner was closed as two crimes have been registered in respect of those incident and as such no further action need be taken in this regard. It is also in away admitted in the petition itself that, the petitioner has filed a private complaint before the Judicial First Class Magistrate Court, Kochi, against the police officials for abusing him and falsely implicated him in the case and that was dismissed by the learned magistrate and the revision filed by the petitioner against that order is pending before this court. It is true that, there are some discrepancies in the entries in the General Diary and the manner in which the incident had said to have happened and the presence of Anilkumar and Rajesh as claimed by the prosecution. But that alone is not sufficient at this stage to come to the conclusion that, there is no possibility for the said Anilkumar be with Rajesh, when he reached that place, especially when it was admitted by the petitioner that, police had come to that place and he was taken to the police station and it is thereafter that the crime was registered. So under the circumstances, it is for the investigating officer and the said Anilkumar to explain the circumstances under which the said Anilkumar happened to be there to witness the incident, as claimed by the prosecution in the final report filed in the matter. If a matter has to be decided on the basis of evidence, then even if there are some discrepancies in the documents maintained in the police station, alone is not sufficient to quash the proceedings, as claimed by the petitioner, invoking the power under Section 482 of the Code, especially when he had not produced the copy of the complaint said to have been filed by him, against the police officer, who mis-behaved with him and not registered a case against Shaji and falsely implicated him in the case, which was dismissed by the learned magistrate and the order passed therein and even did not mention the number of revision, which is said to have been pending before this court. So all these things are matters to be considered on the basis of evidence.

It is settled law that, if a dispute has to be decided on the basis of evidence and false implication cannot be simply inferred on the basis of some discrepancies in the General Diary and other documents, as it has to be proved by the person, who prepared the same, by examining him, regarding the genuineness of the contents of the same and it is for the court to consider at the time of trial and come to a finding on that aspect, then the High Court should not invoke the power under Section 482 of the Code and quash the proceedings. So this court feels that, it is not a fit case to invoke the power under Section 482 of the Code to quash the proceedings at this stage and the application is liable to be dismissed and I do so.

In the result, the criminal miscellaneous case is dismissed. Office is directed to communicate this order to the concerned court, immediately.