Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 CRL.MC NO. 114 OF 2020 CRIME NO.1356/2016 OF Poovar Police Station, Thiruvananthapuram IN CC 1833/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, NEYYATTINKARA PETITIONER/ACCUSED 1 & 2: 1 BIJU R.C. AGED 35 YEARS S/O.RAMACHANDRAN PILLAI, KOYIPPALLIL THEKKETHIL VEEDU, NANGYARKULANGARA, HARIPPAD, ALAPPUZHA DISTRICT. 2 SURESHKUMAR, AGED 42 YEARS S/O.CHELLAPPAN PILLAI, NILACKAL HARIGEETHAM, KARTHIKAPPALL, ALAPPUZHA DISTRICT. BY ADVS. K.K.SETHUKUMAR SRI.S.RAJEEV NISHA MATHEW(KAR/2794/2023) RESPONDENTS/STATE:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CC NO.1833 OF 2018 JFMC-II, NEYYATTINKARA (CRIME NO.1356 OF 2016 POOVAR POLICE STATION, THIRUVANANTHAPURAM DISTRICT), PIN 682037. 2 ADARSH, AGED 35 YEARS D/O.SOMASUNDARAM, ATHIMOODU, KOTTANVILA, ARUMANOOR, POOVAR P.O., THIRUVANANTHAPURAM DISTRICT, PIN 695525. BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH SRI.T.R RENJITH, SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
31.07.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 114 OF 2020 2
ORDER
The petitioners herein are the accused Nos.1 and 2 in C.C No.1833 of 2018, on the files of the Judicial Magistrate of First Class II, Neyyattinkara. In the aforesaid case, they are facing prosecution for having committed offences punishable under Sections 406, 420, and 34 of the IPC.
2. The prosecution alleges that the accused persons, in
furtherance of their intention, defrauded the informant by promising him a job visa in Qatar and received Rs 2 Lakhs by fraudulently inducing him. It is alleged that after inducing the complainant to part with amounts, the VISA was not provided.
3. The contentions of the petitioners are that the prosecution's
allegations are false. It is contended that it is on the strength of a petition filed before the learned Magistrate seeking investigation under Section 156(3) that the crime was registered. According to the learned counsel, the complaint ought not to have been entertained by the learned Magistrate as an affidavit as mandated by the directions issued by the Hon’ble Supreme Court in Priyanka Srivastava and Another v. State of UP and others1 was not filed along with the complaint. The petitioners stated that though in pursuance to the orders passed in Crl.M.C No.1403 of 2017, a fresh affidavit was filed, it contained wrong assertions and therefore the same could not have been relied
2015 KHC 4242 CRL.MC NO. 114 OF 2020 3 upon. It is on these assertions that this petition is filed seeking to quash all further proceedings in C.C No.1833 of 2018 on the files of the Judicial Magistrate of First Class II, Neyyattinkara.
4. Sri. R.T Pradeep, the learned counsel, submits that the
assertions made by the learned counsel appearing for the petitioners are without basis. Challenging the initial registration of the crime and consequent proceedings, the petitioners approached this Court and a learned Single Judge by order dated 26.6.2018 in Crl.M.C No.1403 of 2017 had permitted the de facto complainant to file a fresh affidavit and specific directions were issued that the final report shall be filed only if the directions issued by this Court is complied with. In terms of the directions issued by this Court, the affidavit was filed. It is submitted that in view of the above, the contentions raised in this petition are untenable.
5. I have considered the submissions advanced and have
perused the records. I find that on an earlier occasion, the petitioners had approached this Court being aggrieved by the proceedings and a learned Single Judge of this Court had permitted the de facto complainant to file an affidavit in terms of the directions issued in Priyanka Srivastava (supra). It was on the satisfaction that an affidavit was filed, that the final report was
laid. The contention that there are factual errors in the affidavit does not appeal to me. No contention as regards the sustainability of the final report has been raised in this petition. CRL.MC NO. 114 OF 2020 4
6. Insofar as the merits of the allegations in the final report are
concerned, it is well-settled by now that when a plea for quashing a prosecution in its nascent stages is made, this Court is entrusted with the responsibility of ascertaining whether the uncontested allegations outlined in the complaint or the charge constitute an offense. In the exercise of jurisdiction under Section 482 of the Code, this Court is not justified in minutely scrutinizing the materials that are yet to be presented and evaluated in their proper context. Jurisdiction under the provision must be exercised sparingly, reserving it for exceptional circumstances, and should not be exercised to stifle a legitimate prosecution. At this juncture, only a prima facie case ought to be considered, in accordance with the legal principles enunciated by the Supreme Court in landmark cases such as R.P. Kapur vs. State of Punjab (AIR 1960 SC 866), State of Haryana vs. Bhajan Lal (1992 SCC (Cr) 426), State of Bihar vs. PP Sharma (1992 SCC (Cr.) 192), Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haq and another (2005 SCC (Cr.) 293), and more recently in Neeharika Infrastructure Pvt Ltd v. State of Maharashtra and Others [2021 SCC Online SC 315].
7. Upon careful examination of the available materials and
evaluation of the records in the factual backdrop of the present case, I am of the view that it would be premature to deduce that no offense has been established against the petitioners at this stage. Upon perusal of the entirety of the charge sheet, it becomes evident that specific allegations have been CRL.MC NO. 114 OF 2020 5
leveled against the petitioners, invoking specific offenses under the Indian Penal Code. The arguments put forth by the learned counsel concerning purported contradictions in the witnesses' statements, absence of serious injuries, the timeliness of the complaint, the presence of the accused during the incident, and other related matters fall within the domain of consideration by the trial court at the appropriate stage. This Court is not justified in assessing the appropriateness, veracity, or accuracy of the allegations mentioned in the charge at this juncture based on the CD statements; rather, these aspects are to be deliberated upon by the trial court at the opportune stage after evaluating the evidence adduced before court. It would be prudent for this court to abstain from expressing any opinion regarding the merits of the allegations at this stage, so as to prevent any prejudice to either the prosecution or the accused. In that view of the matter, I hold that the petitioners have not made out any case for intervention at this stage. This petition is dismissed. Sd/- RAJA VIJAYARAGHAVAN V JUDGE
Sru CRL.MC NO. 114 OF 2020 6 APPENDIX OF CRL.MC 114/2020 PETITIONERS ANNEXURES ANNEXURE 1 TRUE COPY OF THE CMP NO.7996/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA NO.II. ANNEXURE 2 CERTIFIED COPY OF FIR NO.1356/2016 OF POOVAR POLICE STATION. ANNEXURE 3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANAGEMENT ATLAS JEWELLERY QATAR DATED 28.12.2016. ANNEXURE 4 TRUE COPY OF THE ORDER IN CRL.MC.1403/17 DATED 26.06.2018. ANNEXURE 5 TRUE COPY OF THE AFFIDAVIT DATED 09.07.18. ANNEXURE 6 TRUE COPY OF THE REPLY DATED 29.10.18 OF POOVAR POLICE STATION. ANNEXURE 7 TRUE COPY OF THE REPLY DATED 03.11.18 OF DISTRICT POLICE CHIEF OFFICE. ANNEXURE 8 CERTIFIED COPY OF THE CHARGE IN CC 1833/18 OF JFMC II, NEYYATTINKARA.