Crl.MC. regarding abuse of court process. Petitioner, an advocate, charged after a client escaped court custody. Court quashed FIR against petitioner addressing the underlying event.
the FIR in Crime No.84 of 2007 so far as it relates to the petitioner/2nd accused
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.RAMKUMAR
MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930
Crl.MC.No. 1397 of 2007()
------------------------CRIME NO. 84 OF 2007 OF CHITTOOR POLICE STATION, PALAKKAD
PETITIONER:
HARIDAS P.NAIR, AGED 33 YEARS, S/O. PRABHAKARAN NAIR, MANGALATHU HOUSE, THURITHISSERI, MEKKADU P.O., NEDUMBASSERI.
BY ADV. SRI.K.RAMAKUMAR (SR.)
RESPONDENTS: RESPONDENTS/ACCUSED:
BY DIRECTOR GENERAL OF PROSECUTION SRI. P.G. THAMBI
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-03-2008, THE COURT ON 07-04-2008 PASSED THE FOLLOWING:
V. RAMKUMAR, J.
*** * * * * * * * * * * * * * * * * * Crl. M.C. No. 1397 of 2007**
*** * * * * * * * * * * * * * * * * * Dated the 7**th day of April 2008
ORDER
In this petition filed under Section 482 Cr.P.C, the petitioner who is a legal practitioner seeks to quash Annexure A FIR in crime No.84 of 2007 of Chittur Police Station and all further proceedings pursuant thereto on the ground that the same amounts to an abuse of the process of the court.
A YOUNG LAWYER'S SUPPLICATION
The petitioner herein is a 33 year old legal practitioner in the High Court of Kerala. He was appearing for Sunil Kumar (the 3rd accused in CR.No.3/2007 of the Chittur Excise Range) . That was a case involving an Abkari offence. On behalf of the said accused
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person, the petitioner moved an application for bail before Sri.N.V.Raju, who was the Judicial Magistrate of First Class, Chittur. On 13.4.07, the Magistrate rejected the application and remanded the accused to judicial custody till 24.4.07. The accused was entrusted to the charge of one Radhakrishnan, Head Constable of Chittur Police Station. It appears that while the 3rd accused in CR.No.3/2007 was in charge of the said Radhakrishnan, he escaped from custody. The Head Constable tried to maintain contact with the absconding accused through the mobile phone supplied to him by the petitioner on his request. The said attempt of the Head Constable was to ensure that the absconding accused reports back to the court. Since the absconding accused did not return even after waiting for sometime, the Head Constable appears to have filed a statement before the Magistrate to the effect that the petitioner herein, who was the counsel appearing for the absconding accused, was responsible for his escape. The petitioner who was the counsel for the absconding accused was perfectly entitled to meet his client whose bail had been rejected, to tender him the necessary legal advice for moving a superior Court for bail. That cannot amount to rescuing the accused who was in judicial custody. The learned Magistrate forwarded the said statement of
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the Head Constable to the Chittur Police under Section 156 (3) Cr.P.C. The Police registered the present FIR as Crime No.84/2007 against four persons namely (Sunil Kumar, the accused in CR.3/2007), the petitioner herein and two of the sureties of the accused in CR 3/2007 for offences punishable under Sections 224, 225 (part 2) and 120(B) read with 34 IPC. Significantly, the Head Constable who was having custody of the accused and who was responsible for the escape of the absconding accused was not shown as an accused nor was any action taken against him. This was because of the common knowledge among the legal practitioners of Chittur that the said Head Constable was maintaining intimate relationship with the Magistrate. Consequent on the registration of the aforesaid crime, the petitioner herein was arrested by the Chittur Police in the night of 13.4.07 at about 11.50 p.m. and produced at the residence of the Magistrate who remanded the petitioner to judicial custody. An application for bail filed by the petitioner was rejected by the Magistrate with caustic remarks against the petitioner. The observations in the bail order practically hold the petitioner guilty. The Magistrate forgot that since the escape of the accused was from judicial custody, the Magistrate would be a material witness in the case. Therefore,
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he should have sent the case to some other Magistrate for registration of the crime and other follow - up measures. No person who is likely to be a witness can be the Judge in the case in view of Section 224 Cr.P.C. (Section 479 Cr.P.C. ?). Significantly, one of the material objects in the case against the petitioner is his professional robes and it is not clear as to how the same can be a material object at all. The incident leading to the registration of Annexure A FIR actually reveals the deep rooted conspiracy between the Magistrate and the Head Constable on account of the intimate relationship between them. On 18.4.07, the petitioner moved the Sessions Court, Palakkad for bail. The learned Additional Sessions Judge posted the case to 19.4.07 for arguments. Eventhough the learned Public Prosecutor did not oppose the application for bail, the Additional Sessions Judge posted the case for orders to 20.4.07. The petitioner was, therefore, constrained to move this Hon'ble Court by filing a bail application as B.A.No.2513 of 2007. On 19.4.07, this Court granted bail to the petitioner after observing that the Magistrate who would have been a competent witness in the case should not have dealt with the case and after noting that no case had been registered against the Head Constable from whose custody the
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accused had escaped and who was primarily answerable for the escape of the absconding accused. Even if all the allegations in the complaint are true, neither Section 224 nor Section 225 Part II IPC is attracted. The entire proceedings culminating in the registration of Annexure A FIR constitute a gross abuse of the process of the court and is solely motivated to save the skin of the real accused in the case namely the Head Constable, Radhakrishnan. Further continuance of the proceedings pursuant to Annexure A FIR will amount to manifest injustice to the petitioner resulting in failure of justice.
THE STAND OF THE STATE PUBLIC PROSECUTOR/ CHAIRMAN OF THE STATE BAR COUNCIL
The incident in which a member of the Bar has been arrayed as an accused on the allegation that he prompted the absconding accused to escape from custody and was remanded to judicial custody and his bail application was rejected by the Magistrate, has been viewed with great concern by the members of the Bar. There has been a hue and cry among the legal fraternity. There have
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been demands from various Bar Associations that the incident should not be lightly viewed and that the matter should be brought to the notice of the Hon'ble Chief Justice and the Judge in charge of Palakkad District. That was accordingly done. Various bodies of legal practitioners have passed resolutions condemning the conduct of the Magistrate and clamouring that appropriate disciplinary action should be taken against the Magistrate. This unfortunate incident has sparked off agitations which have not died out even after the lapse of nearly one year.
JUDICIAL RESOLUTION
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unpredictability of a sizeable number of the members whom he represents.
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THE FACTUAL SCENARIO
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pronounced at 3.45 p.m. the learned Magistrate rejected the bail application and remanded Sunil Kumar to judicial custody till 224-2007. Thereafter, the Magistrate retired to his chamber. Before the issue of a remand warrant for entrusting the accused with the police for the purpose of his detention in jail on judicial custody, accused Sunil Kumar with whom the petitioner herein had a word in private, ran out of the Court and escaped from Court custody. At about 5.15 p.m. one Radhakrishnan (HC 2906) the Head Constable attached to Chittur Police Station and who was on court duty in the Magistrate's Court at Chittur submitted a statement before the Magistrate. The said statement in vernacular Malayalam is to the following effect:
“Today on 13-4-2007 I was deputed from Chittur Police Station for court duty and I reached the J.F.C.M. Court at 10.30 a.m. After lunch, at about 3.45 p.m. when the case of Sunil Kumar, the 3rd accused in Chittur Excise Crime 3 of 2007 was called the said accused came and stood in the dock. The learned Magistrate pronounced orders rejecting his bail application and asked the accused to get down from the dock and remain inside the court itself. The Magistrate then retired to his chamber. While so, the Advocate who
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-:10:-
was appearing for accused Sunil Kumar called the accused to the Veranda of the court under the pretext of talking something in private with him. The two sureties who had come to court for bailing out accused Sunil Kumar were also present with the Advocate. At that time the advocate got a call in his mobile phone. The accused and the sureties were seen talking with each other. Soon after the counsel completed the call, accused Sunil Kumar suddenly ran out. After crossing the gate when he moved quickly outside the Court compound, his Advocate was seen proceeding towards the Bar Association pretending as if nothing happened. Eventhough I ran after the accused Sunil Kumar, the latter got into a car which was waiting outside the court and sped towards 5th line area. I immediately informed the police station for apprehending accused Sunil Kumar. I then returned to the court. After meeting the advocate who was appearing for Sunil Kumar I asked him the mobile number of Sunil Kumar and the Advocate gave the number as 9846040851. I then borrowed the mobile phone of the Advocate and called Sunil Kumar. Styling myself as the Advocate, I asked Sunil Kumar to come back to the Court. Then Sunil Kumar retorted saying
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“was it not on your advice that I ran away and why are you now saying so”. I understand that the mobile phone number of the Advocate is 9446384780. It was as a part of a conspiracy to rescue the accused from the custody of the court in the event of the court denying bail to the accused that the accused escaped from custody and his Advocate, sureties and others pursuant to the conspiracy hatched between them, were helping Sunil Kumar to escape from custody. I understand that the case against the absconding accused Sunil Kumar is for an offence punishable under Sec. 55(a) of the Abkari Act and the names of his sureties are Sunil Kumar and Karthikeyan. On enquiries made by me regarding the name of the Advocate who was appearing for Sunil Kumar, what is revealed by the court records is that his name is Krishnadas P. Nair. But, when I asked the Advocate his name from the Court he revealed his name as Haridas P. Nair. Appropriate action may be taken in the matter”.
The learned Magistrate treated the above report as a complaint and forwarded the same to the Station House Officer, Chittur Police Station under Sec. 156 (3) Cr.P.C. On receipt of the
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complaint, the Chittur police registered a case as Crime No. 84 of 2007 against Sunil Kumar the absconding accused, the petitioner herein and the two sureties namely Sunil Kumar and Karthikeyan for offences punishable under Sections 224, 225 ( part ii) and 120 B read with Sec. 34 I.P.C. The petitioner along with accused Nos. 3 and 4 were arrested at 11.50 p.m. on the same day. The petitioner was taken to the residence of the Magistrate who remanded him till 24-4-2007. The mobile phones of the petitioner herein (A2) and one of the sureties by name Sunil Kumar (A3) were seized and produced under a mahazar in which the outgoing and incoming calls, as revealed in the petitioner's mobile phone, have been recorded. The petitioner herein who was the 2nd accused in Crime No. 84 of 2007 filed C.M.P. 1042 of 2007 before the learned Magistrate seeking bail. On 17-4-2007 the learned Magistrate dismissed the bail application. On 18-4-2007 the petitioner moved the Sessions Court for bail. The Addl. Sessions Judge was holding charge of the Sessions Judge. The said bail application was posted to the next day for arguments. On the next day the bail application was posted for orders to 20.4.2007. In view of the delay in disposal of the bail application the petitioner moved this Court by filing B.A. 2513 of 2007 and this Court as per
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Annexure C order dated 19-4-2007 directed the immediate release of the petitioner giving him the benefit of executing a bond thereafter. The petitioner herein was thus released from custody. This in short, is what transpired in this case.
JUDICIAL EVALUATION
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be said that accused Sunil Kumar was in the custody of Radhakrishnan, the Head Constable. The Head Constable's duty was only to guard the court hall and Chamber of the Magistrate. Therefore, it cannot be said that the Head Constable was keeping custody of Sunil Kumar or that the Head Constable was responsible for the escape of Sunil Kumar.
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asked Sunil Kumar to return to the Court , Sunil Kumar allegedly asked him as to why he was demanding him to come back to the court since it was the petitioner Advocate who had asked him to run away. This aspect of the matter can be said to have been proved only if the exact conversation through the mobile phones is decoded and produced as an item of evidence.
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the whole operation. That explains the action of the Magistrate in remanding the petitioner to judicial custody and subsequently rejecting the petitioner's bail application, although it could be said that the rejection of the bail application of the petitioner, a member of the Bar, could have been avoided. May be, it was a natural reaction springing from the righteous indignation that an Advocate who is an officer of the Court should not have extended a helping hand to an accused person to flee from justice. But I can certainly say that there was absolutely no mala fides behind the action of the Magistrate. There is absolutely no material to suggest that the professional robes of the petitioner were seized as a material object. The only two material objects which were seized under a mahazar were the mobile phone of the petitioner herein and the mobile phone of Sunil Kumar (the 3rd accused in C.R. No. 84 of 2007) who was one of the two sureties of the absconding accused Sunil Kumar. By no stretch of imagination could it be said that the Magistrate, who even according to the petitioner had not witnessed the escape of Sunil Kumar, would have become a witness in this case so as to oblige him to transfer the case to another Court. Moreover, the statutory interdict under Section 479 Cr.P.C. is also against trying the case. Otherwise, it will amount to
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stretching the law to the unreasonable extent of saying that a Magistrate who forwards a complaint to the Police under Section 156 (3) Cr.P.C. and thereafter rejects a bail application of the accused consequent on a police report and cognizance of the offence, is debarred from trying the case.
cause of justice. The curtain should fall here, and there should
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not be any more bickerings or simmering agitations on account of this incident. More than the question as to whether the provisions of the Indian Penal Code registered against the petitioner are attracted or not , it is the majesty and purity of the system which are supreme. I, therefore, quash the F.I.R. in Crime No. 84 of 2007 of Chittur Police Station so far as it relates to the petitioner/2nd accused. The investigation, with regard the remaining three accused persons can, however, continue.
This Crl.M.C. is allowed as above.
V. RAMKUMAR, (JUDGE)
ani.
3 issues framed by the court
Whether the FIR registered against the petitioner for aiding an accused's escape amounts to an abuse of the process of the court.
Whether the Magistrate who rejected bail and remanded the accused was disqualified from trying the subsequent case due to potential witness conflict.
If the investigation and trial proceedings against a legal practitioner in such circumstances should be quashed.
4 provisions across 2 enactments
HARIDAS P.NAIR
STATE OF KERALA
V.RAMKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
