Partly allowed

James Joseph v. Venugopalan

Kerala HC4 Jun 2014Crl.MC/4026/2012

Case brief

AI extract

What is this about?

The Kerala High Court quashed the investigation regarding an offence under Section 188 IPC due to a violation of Section 195 Cr.P.C. Mandatory requirements were not met for taking cognizance of the offence against a public servant, but proceedings for a different charge under the Explosive Substances Act were left undisturbed.

What did the court decide?

The investigation u/s.188 IPC was quashed. The trial pending before the Assistant Sessions Court u/s.3 of the Explosive Substances Act remains unaffected.

James Joseph Vs Venugopalan — Quashing and FIR | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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WEDNESDAY, THE 4TH DAY OF JUNE 2014/14TH JYAISHTA, 1936

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Crl.MC.No. 4026 of 2012 (C)

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[AGAINST S.C.NO.16/2012 PENDING BEFORE THE ASSISTANT SESSIONSCOURT, OTTAPPALAM]

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PETITIONER/ACCUSED:

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JAMES JOSEPH, AGED 44 YEARS, S/O. P.C. JOSE, MANAGING PARTNER, J.P.CONSTRUCTIONS, CHURAKKOD P.O, VIA.VALLAPPUZHA, OTTAPPALAM TALUK, PALAKKAD DISTRICT (ADDRESS AS SHOWN IN THE FINAL REPORT) NOW RESIDING AT PUNJAPUTHUSSERRY HOUSE, P.O.KIZHAKKAMBALAM, ERNAKULAM.

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BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADVS.SRI.M.REVIKRISHNAN, SRI.P.M.RAFIQ.

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RESPONDENTS/DEFACTO COMPLAINANT & STATE:

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1. VENUGOPALAN, S/O. AMBUJAKSHI AMMA, PALAPPATTA HOUSE, VALLAPPAUZHA AMSOM, CHURAKKOD DESOM - 679 336.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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R1 BY ADVS. SRI.SANTHEEP ANKARATH, SRI.ARUN MATHEW VADAKKAN, R2 BY SR. PUBLIC PROSECUTOR SRI. VIJU THOMAS.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Prv.

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CRL.M.C. NO.4026/2012 - C:

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE A: TRUE COPY OF THE FINAL REPORT IN CRIME NO.101/2008 OF PATTAMBI POLICE STATION. ANNEXURE B: TRUE COPY OF THE JUDGMENT IN O.S. NO.160 OF 2007 OF THE COURT OF THE MUNSIFF MAGISTRATE, PATTAMBI DTD. 22/08/2012.

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RESPONDENTS' ANNEXURES: NIL.

//TRUE COPY//

P.A. TO JUDGE.

Prv.

P.D. RAJAN, J.

Crl.M.C. No.4026 of 2012

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Dated this the 4^th day of June, 2014

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ORDER

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This petition is filed u/s.482 of Cr.P.C. to quash Annexure-A final report in Crime No.101/2008 of Pattambi Police Station, which was charge sheeted u/s.188 IPC and u/s.3 of Explosive Substances Act, 1908. The petitioner is the accused in the above case, which was charge sheeted on the basis of a complaint filed by the 1^st respondent, and is pending before Assistant Sessions Court, Ottappalam as S.C.No.16/2012. The petitioner contended that he is the owner of a quarry, J & P Constructions, Vallapuzha in Ottappalam Taluk and conducting the business as per the proper licence issued by the Government. While so, the 1^st respondent raising false allegations against him filed the above complaint. After investigation, Annexure-A final report was filed before Court.

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The allegation of the 1^st respondent is that on

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Crl.M.C.No.4026/12

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14.2.2008, the petitioner used explosive substances in quarrying operation without proper licence, which is a violation of the direction issued by the Court. As a result, the houses of 1^st respondent and the witnesses 3 to 9 were damaged. Such quarrying operations with explosive substances is a threat to human life. Hence, he filed the above complaint.

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The learned counsel appearing for the petitioner contended that there was a civil case pending as O.S.No.160/2007 before Munsiff Court, Pattambi between the 1^st respondent and the petitioner, which was decreed in favour of the petitioner. Aggrieved by that order, he foisted a false case and filed the above complaint. There is a statutory bar u/s.195 Cr.P.C. for taking cognizance of an offence u/s.188 IPC by a Magistrate. Ignoring that statutory bar, the police investigated the case and laid Annexure-A final report, which is in violation of mandatory provisions contained u/s.195 Cr.P.C.

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The learned counsel appearing for the 1^st respondent contended that the petitioner had no valid explosives licence for conducting quarrying operation on

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Crl.M.C.No.4026/12

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14.2.2008. If that be the position, the use of any explosive substance or explosion endangering the life of the 1^st respondent and causing serious damages to the houses of witnesses 3 to 9 amounts to an offence punishable u/s.3 of the Explosive Substances Act. 1908. The police investigated the case and laid Annexure-A final report, which shows that a prima facie case is made out against the petitioner and no interference is necessary in this case.

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By invoking the inherent jurisdiction u/s.482 Cr.P.C., the High Court can make such orders as may be necessary to give effect to any order under this Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. While exercising such jurisdiction, the High Court would not ordinarily conduct an enquiry with regard to the available evidence whether it is reliable or not, since this is the interlocutory stage and prima facie satisfaction of the evidence is sufficient. Here, the averment of the 1^st respondent is with regard to the violation of licence condition by using explosive substances. For that, the police

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charge sheeted the petitioner. Apex Court in State of Haryana

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Crl.M.C.No.4026/12

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V. Bhajanlal [1992 SCC (Crl) 426] pointed out that:

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“where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”.

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The facts and circumstances in this case show that

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prima facie case u/s.3 of Explosive Substances Act, 1908 is made out against the petitioner and the police filed a final report. Now the case is committed to Assistant Sessions Court, Ottappalam, which is pending for trial as S.C.No.16/2012. Therefore, when prima facie case is made out against the petitoiner, interference at this stage is not fair. The 1^st respondent filed a petition for taking cognizance of the offence u/s.188 IPC. There is a statutory bar u/s.195 Cr.P.C.. Section 195(1) (a) (i) explains that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code except on a complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. Here,

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Crl.M.C.No.4026/12

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no averment in Annexure-A final report with regard to any violation of any order by the public servant. If that be the position, investigation made in this case is without jurisdiction, which is in violation of mandatory provisions. The bar u/s.195 Cr.P.C. restricts the Magistrate to take cognizance of an offence u/s.188 IPC. Therefore, by invoking the inherent jurisdiction u/s.482 Cr.P.C., the investigation conducted for offence u/s.188 IPC and cognizance, if any, taken by the Magistrate are to be quashed. But, no materials are produced before me to quash the cognizance taken by the learned Magistrate u/s.3 of Explosives Substances Act, 1908, which is pending before Assistant Sessions Court, Ottappalam.

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In the result, the investigation u/s.188 IPC is quashed by invoking the inherent jurisdiction. But, this will not affect the trial of the case pending before the Assistant Sessions Court, Ottappalam u/s. 3 of Explosive Substances Act, 1908 and this Crl.M.C. is disposed accordingly.

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P.D. RAJAN, JUDGE.

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acd

James Joseph v. Venugopalan

Case brief

What is this about?

What did the court decide?

James Joseph v. Venugopalan

Case brief

What is this about?

What did the court decide?

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