Dr.K.P.Satheesan vs State Of Kerala

Ziyad Rahman A.A., J

The petitioner herein is the accused in C.C.No.648/2015 pending before the Judicial First Class Magistrate Court-1, Ernakulam. The aforesaid case is registered on the basis of a private complaint submitted by the 2nd respondent herein for the offences punishable under Sections 350, 352, 379 & 506(ii) of the Indian Penal Code.

The facts leading to the filing of this Crl.M.C., according to the petitioner, is as follows:

The petitioner herein is a Senior Advocate practicing at Ernakulam. On 21.9.2012, between 9-930 a.m., the petitioner was traveling in his car along with his wife from west to east through the Vallarpadom Container Terminal road for attending a funeral at Koonammavu. While so, the de facto complainant who came from opposite direction in his car driving in a rash and negligent manner and hit on the right side mirror of the car of the petitioner herein. Consequently, the mirror was completely damaged. Both the parties have stopped their respective vehicles and the 2nd respondent/de facto complainant assured the petitioner that he is ready to repair the damage sustained to the car. However, he wanted to go urgently, as he has to report to his office at Willingdon Island before 10 a.m. Accordingly, the 2nd respondent left the place of occurrence and before leaving, he handed over to the petitioner the registration certificate and his driving licence to the driver of the petitioner as an assurance for his commitment to repair the vehicle.

It is pointed out that, instead of carrying out repairs as promised, the de facto complainant submitted Annexure-I complaint before the Sub Inspector of Police, Mulavukkad alleging that, the petitioner has forcibly taken the R.C.book and licence from his car. It is averred by the petitioner that the police conducted a preliminary inquiry and no case was registered. On 26.9.2012, the de facto complainant submitted another complaint which is produced as Annexure-II before the Inspector General of Police, Ernakulam reiterating the aforesaid allegations. It is contended by the petitioner that no proceedings were initiated on the basis of the same apparently due to the falsity in the aforesaid complaint. In the meanwhile, the petitioner entrusted the R.C.book and driving licence of the de facto complainant with the Assistant Commissioner of Police, City Traffic, Ernakulam on 22.9.2012. It is learned that the same is already returned to the de facto complainant through Sub Inspector of Police, Mulavukkad.

As the 2nd respondent failed to repair the damage sustained to the petitioner’s vehicle, he submitted a complaint before the Ernakulam City Traffic Police (West) and Annexure-III F.I.R. was registered against the 2nd respondent for the offence under Section 279 of the Indian Penal Code. Later, as a counterblast to the aforesaid complaint, Annexure-IV private complaint was submitted by the 2nd respondent before the Judicial First Class Magistrate Court-I, Ernakulam for the offences mentioned above. Even though, the said complaint was submitted during the month of October, 2012, the cognizance thereof was taken only in the year, 2016 and Annexure-V summons was issued to the petitioner. A perusal of Annexure-V, it would indicate that the offence mentioned therein is under Section 190(1)(a) of the Code of Criminal Procedure. It is pointed out that, the aforesaid summons indicate that the cognizance taken by the learned Magistrate was without any application of mind. This Crl.M.C. is filed seeking to quash all further proceedings pursuant to Annexure-IV complaint.

Heard both sides.

The learned counsel for the petitioner contends that, Annexure-IV complaint does not disclose any offence as alleged. It is discernible that the major offence alleged against the petitioner is under Section 379 of the Indian Penal Code. The allegation which forms the basis of the said complaint is that the petitioner has forcibly taken away the registration certificate and driving licence of the petitioner without the consent of the complainant. However, it is an undisputed fact that, the registration certificate and driving licence which was collected by the petitioner was entrusted with the Assistant Commissioner of Police, City Traffic, Ernakulam on the next day itself and the same is already returned to the complainant through the Sub Inspector of Police, Mulavukkad Police Station. In order to attract the offence punishable under Section 379 of the Indian Penal Code, the property in question must have taken, with a dishonest intention to take away the same out of the possession of any person without that person’s consent. Thus, the most necessary ingredient is dishonest intention on the part of the accused. In this case, even going by the averments contained in the complaint submitted by the 2nd respondent, it is discernible that there was a collision of the vehicles of the parties which resulted in damage to the vehicle. It is also discernible that the registration certificate and driving licence of the complainant which was taken by the petitioner were entrusted with the police on the next day of the incident. In such circumstances, it is evident that the said documents were not taken by the petitioner with any dishonest intention and thereby the offence under Section 379 of the IPC is not attracted. It is also not disputed that the aforesaid documents were already returned to the the 2nd respondent.

Another offence alleged against the petitioner is under Section 506(ii) of the Indian Penal Code. However, in order to attract the aforesaid offence, there must be an allegation that the accused has threatened the complainant to cause death or grievous hurt. On going through the averments contained in Annexure-IV complaint there are no such allegations in this regard. It is also to be noted that in Annexure-1 complaint which is the complaint allegedly submitted by the 1st respondent immediately after the incident, it is not stated that, the petitioner has made any threat against him. Annexure II is another complaint submitted by the 2nd respondent. Even though it is mentioned therein that, the petitioner has threatened him, the manner in which such threat is allegedly made is not mentioned. The words used by the petitioner is not seen mentioned therein. Therefore, as the offence under section 506(ii), requires an allegation of threat to cause death or grievous hurt, absence of such averments is very fatal. In Annexure IV complaint also, no specific details of the threat allegedly made by the petitioner, is seen mentioned. In such circumstances, the offence under Section 506(ii) is also not attracted from the allegations contained in the complaint submitted by the 2nd respondent.

The remaining offences are punishable under Sections 350 and 352 of the IPC. Section 350 of the IPC provides that whoever intentionally uses force to any person, without that person's consent, in order to the commit any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that person. In this regard, it is to be noted that, as mentioned above, Annexure-I is the first complaint submitted by the 2nd respondent before the police. The averments contained in the said complaint do not indicate any allegation of any force as defined under Section 349 of IPC. The expression ‘force’ is defined in the said provision is as follows:

Section 349: A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling:

Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter describe:

First.- By his own bodily power.

Secondly.- By disposing any substance in such manner that the motion or change or ceasation of motion taken place without any further act on his part, on the part of other person;

Thrdly.- By inducing any animal to move, to change its motion, or to cease to move.”

In this case on going through the averments contained in Annexure-IV there is nothing to indicate any act on the part of the petitioner, by which he touched the 2nd respondent or making any contact with his body in such manner to affect his sense of feeling. It is true that, it is mentioned in Annexure-IV complaint that, the petitioner has used abusive language against the complainant. However, the words which the petitioner allegedly used are not mentioned and the offence under Section 294(b) is also not seen incorporated in Annexure-IV complaint. Hence, the ingredients for the offence under section 350 is also not there in Annexure-IV complaint. Thus, in the absence of any averments constituting the ingredients of Section 350 IPC, the offence punishable under Sections 352 IPC is also not attracted. It is evident that the incident which ultimately resulted in the submission of Annexure-IV complaint is arising from a motor incident in which the vehicles of both the parties collided. It is discernible that the petitioner has already submitted a complaint in this regard before the police and an F.I.R. was also registered against the 2nd respondent herein.

In such circumstances, I am of the view that, the proceeding in Annexure-IV complaint is an abuse of process of law since none of the offences are attracted against the petitioner herein. Hence, I am of view that this is fit case in which the powers of this court under section 482 Cr.P.C can be invoked.

In the result, this Crl.M.C. is allowed and all proceedings in C.C.No.648/2015 on the file of the Judicial First Class Magistrate Court-1, Ernakulam are hereby quashed.