Samuel vs State Of Kerala

K.Haripal, J

Accused in CC No.267/2021 on the file of the Judicial First Class Magistrate-II, Haripad have moved this Crl.M.C. under Section 482 of the Code of Criminal Procedure, praying to quash Annexure-2 final report in crime No.333/2021 of Kareelakulangara police station in Alappuzha district. That is a suo motu case registered by the 2nd respondent, Sub Inspector of police of Kareelakulangara police station against petitioners on 25/6/2021 alleging offence under Sections 188, 268, 269, 278 read with 34 of IPC and under Section 120(e) of the Kerala Police Act. Annexure-1 FIR indicates that the petitioners were found transporting abattoir waste, chicken waste, in Leyland Dosth lorry KL-23-Q-6610, without any authorisation by the Sub Inspector near Nadappurayil Fuels in Nangyarkulangara junction, awaiting opportunity to dumb the waste in public place, on the west of the old National Highway. The Sub Inspector took the vehicle into custody along with the petitioners, the crime was registered and on conclusion of investigation, the charge sheet was laid before the Judicial First Class Magistrate-II, Haripad, where the case was taken on file as CC No.267/2021 on the above stated allegations. The petitioners seek to quash the proceedings under Section 482 of the Cr.P.C.

I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.

According to the learned counsel for the petitioners, the petitioners are employees of one Shamlad, who is doing business in collecting and removing abattoir waste from Kollam district and also from the limits of Corporation of Thiruvananthapuram. Documents have also been produced to say that he has been authorised to collect abattoir waste from different other sources. Therefore he wanted to rebut the contention of the prosecution that such wastes were collected unauthorizedly by the petitioners. According to him, abattoir waste is a valuable raw material for manufacturing organic fertilisers, fish food etc. That day the petitioners, employees of said Shamlad, were transporting waste collected from Thiruvananthapuram and Kollam to be given to Parakkal Industries, an organic fertilizer factory in Ernakulam. At that time, under the influence of his business rivals, the 2nd respondent was illegally taking the vehicle into custody and such a crime was registered to please the rival gang. On 25/06/2021, a few persons under the leadership of one Abdullah, Altaf and Iqbal along with three identifiable persons broke the front glass of the vehicle of the petitioners. Immediately thereafter the employer of the petitioners went to Kareelakulangara police station and submitted Annexure-14 complaint. As directed by the police authorities the petitioners took the vehicle near the police station. At that time, the 2nd respondent came there, saw the vehicle parked near the police station and then abused the petitioners and threatened them to implicate them in non bailable criminal cases and thereafter a suo motu crime was registered. He was acting on behalf of the rival groups of the employer of the petitioners against which the said Shamlad had given complaints to the higher authorities. The learned counsel also submitted that Annexure-20 crime was registered at the instance of the 2nd petitioner alleging offence under Sections 341, 294(b), 323, 324 and 427 read with 34 of the IPC. The learned counsel also asserted that these proceedings were initiated at the instance of his rival groups. On the basis of the complaint given by the employer the Inspector has already been transferred. So the learned counsel submitted that it is a false prosecution, which is liable to be quashed.

The learned counsel has raised mainly three contentions to quash the final report in crime No.333/2021. Firstly, as stated earlier, there is absolutely no basis in the allegations and they have been falsely implicated; it cannot be believed that the waste which would fetch them Rs.16/- per Kg. would be dumped in public place, for no return; secondly, that offence under Section 188 of the IPC could not have been raised against the petitioners without a complaint and bar under Section 195 of the Cr.P.C. prohibits initiation of proceedings and thirdly, the case was registered, investigation was conducted and charge sheet was laid by the 2nd respondent, which is bad in view of the decision in Mohan Lal v. State of Punjab [2018 (3) KLT 852 (SC)].  He also cited Varinder Kumar v. State of Himachal Pradesh [2019 (1) KLT 615 (SC)].

The learned Senior Public Prosecutor has disputed the arguments of the learned counsel. According to him, the crime was detected at 1.45 a.m. on 25/06/2021; the time of occurrence is very important. In other words, the petitioners were trying to dispose chicken waste in public place in the early hours of the day which was caught red handed by the 2nd respondent. Even if the petitioners are innocents, they can move the trial court for getting them discharged.

According to the learned Public Prosecutor, apart from Section 188 of the IPC other offences are also alleged against the petitioners. There is no material to say that the petitioners are authorised to deal with abattoir waste. He has also submitted that Annexures 7 to 12 have not been produced before the Investigating Officer.

As rightly pointed out by the learned Public Prosecutor, even if it is found that prosecution under Section 188 of IPC is barred under Section 195 of the Cr.P.C., still there are other offences alleged against the petitioners, for proceeding with the same there is no legal bar.

Secondly,  the  contentions  based  on  Mohan Lal  or Varinder Kumar, cited supra, cannot salvage the situation. It is true that the crime was registered, the case was investigated and charge sheet was laid by the very same person. But, in the light of the decision of the Constitution Bench of the Hon'ble Supreme Court, consisting of five Judges in Mukesh Singh v. State (Narcotic Branch of Delhi) [2020 (5) KHC 1 (SC)], there is no legal bar in the informant himself investigating and laying the charge sheet. In the decision, the Hon'ble Supreme Court has clearly held that Mohan Lal's case is not good law. Therefore, that argument also falls to the ground 9. The argument that the petitioners are innocents that they have been falsely implicated under the influence of rival group of the employer of the petitioners etc. cannot be considered by this Court while exercising jurisdiction under Section 482 of the Cr.P.C. It is a matter of evidence as to whether the petitioners had carried abattoir waste unauthorisedly and illegally. They were found by the 2nd respondent in suspicious circumstances at the early hours of 25/6/2021. They were intercepted by the police in the darkness of night. It is for the petitioners to say that they are employees of an authorised abattoir waste dealer and that they were acting on his behalf etc. This Court is quite conscious of the fact that the jurisdiction under Section 482 of the Cr.P.C. to quash the proceedings cannot be arbitrarily exercised to cut short the normal process of criminal trial except in exceptional circumstances. Here the contentions of the parties are mutually exclusive. While the petitioners have claimed that they were transporting abattoir waste on behalf of the authorised dealer etc., the learned Senior Public Prosecutor has disputed the same. In other words, there are disputed questions of facts to be decided which can be resolved only after taking evidence.

Moreover, at this stage, this Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made against the petitioners. This Court cannot decide the case based on the statements given by witnesses under Section 161 of the Cr.P.C., or having regard to the fact that no independent witness is cited in the witness list.

On these considerations, I am not convinced that the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C. can be exercised in the case. The Crl.M.C. is devoid of merit and is dismissed.