Dismissed

Shine Varghese v. State of Kerala

Kerala HC2 Jul 2014Crl.MC/785/2013

Case brief

AI extract

What is this about?

This court dismissed a criminal miscellaneous petition challenging the addition of accused persons as lawyers under Section 319 Cr.P.C. The Supreme Court held there was no illegality in the lower court order and invoked no inherent jurisdiction under Section 482 Cr.P.C. to grant the sought relief. The case will be tried on merits.

What did the court decide?

Crl.M.C. No. 785 of 2013 dismissed without prejudice to petitioners' rights to contest the case.

Shine Varghese Vs State of Kerala — Civil Procedure and Limitation | 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 A.HARIPRASAD

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WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936

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Crl.MC.No. 785 of 2013 ()

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AGAINST THE ORDER/JUDGMENT IN CC 33/2010 of J.M.F.C., PEERMADE CRIME NO. 184/2006 OF KUMILY POLICE STATION , IDUKKI.

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PETITIONER(S)/3RD & 4TH ACCUSED :

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-------------------------------

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1. SHINE VARGHESE, AGED 37 YEARS, ADVOCATE, S/O.P.T.VARGHESE, PULICKAKUNNEL HOUSE, KUMILY VILLAGE,

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PEERMADE TALUK, IDUKKI DISTRICT.

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2. T.C. ABRAHAM, AGED 42 YEARS, ADVOCATE, SON OF CHERIYAN, THAKIDIPURATHU HOUSE, KUMILY VILLAGE, IDUKKI DISTRICT.

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BY ADVS.SRI.G.HARIHARAN

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SRI.PRAVEEN.H.

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RESPONDENT(S)/STATE/DEFACTO COMPLAINANT:

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----------------------------------------

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERANKULAM. 682 031.

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2. SUB INSPECTOR OF POLICE, KUMILY POLICE STATION, KUMILY, IDUKKI DISTRICT – 685 509.

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3. SMRITHI SUKLA, AGED 36 YEARS, R/O. 9/A KALYANPUR, KHURD PANKI ROAD, KANPUR, UTTARPRADESH, RESIDING AT KANPUR HOUSE, NO.II/925A, ROSAPPUKANDOM KARA, KUMILY VILLAGE, PEEREMADE TALUK - 685 509.

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R3 BY ADVS.SRI.P.J.JOSEPH &

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SRI.CYRIL JOSEPH

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R1 & R2 BY PUBLIC PROSECUTOR SMT.JUSTIN JACOB.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 785 of 2013 ()

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APPENDIX

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PETITIONER(S) EXHIBITS :

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ANNEXURE-I -	TRUE COPY OF THE APPLICATION FILED FOR THE APPOINTMENT OF AN ADVOCATE COMMISSIONER IN CONNECTION WITH O.S.NO.143/2006 BEFORE THE MUNSIFF COURT, PEERMADE.
ANNEXURE-II -	TRUE COPY OF THE ORDER DATED 18-9-2006 ISSUED BY THE MUNSIFF COURT, PEERMADE APPOINTING THE 2ND PETITIONER AS THE ADVOCATE COMMISSIONER TO INSPECT THE PROPERTIES MENTIONED ANNEXURE-1.
ANNEXURE-III-	TRUE COPY OF THE COMPLAINT DATED 18-9-2006 FILED BY THE 2ND PETITIONER BEFORE the 2ND RESPONDENT.
ANNEXURE-IV-	TRUE COPY OF THE FINAL REPORT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT -II, PEERMADE IN CONNECTION WITH CRIME NO.183/2006 OF KUMILY POLICE STATION .
ANNEXURE-V -	TRUE COPY OF THE WRITTEN COMPLAINT SIGNED AND PRODUCED PERSONALLY BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT PURPORTEDLY ON 19-9-2006.
ANNEXURE-VI -	TRUE COPY OF THE REPORT DATED 19-9-2006 FILED BY THE 2ND RESPONDENT BEFORE THE JFCM COURT PEERMADE IN CONNECTION WITH CRIME NO.184/2006 OF KUMILY POLICE STATION.
ANNEXURE-VII -	TRUE COPY OF THE FINAL REPORT FILED BEFORE THE JFCM COURT-II PEERMADE IN CONNECTION WITH CRIME NO.184/2006 OF KUMILY POLICE STATION.
ANNEXURE-VIII-	TRUE COPY OF THE COMMISSIONER'S REPORT FILED IN CONNECTION WITH O.S.NO.143/2006 ON 13-12-2007 BEFORE THE MUNSIFF COURT PEERMADE.
ANNEXURE-IX -	TRUE COPY OF THE DEPOSITION MADE BEFORE THE JFCM COURT KATTAPPANA BY THE 1ST PETITIONER AS PW1 IN CONNECTION WITH CC. NO.32/2010 PENDING BEFORE THE JFCM COURT, KATTAPPANA.
ANNEXURE-X -	TRUE COPY OF THE APPLICATION PURPORTEDLY FILED UNDER SECTION 319 OF THE CRIMINAL PROCEDURE CODE BY THE 3RD RESPONDENT BEFORE THE JFCM COURT, KATTAPPANA AS CMP NO.512/2012 IN C.C.NO.33/2010.

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Crl.MC.No. 785 of 2013 () -2-

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ANNEXURE-XI - TRUE COPY OF THE ORDER DATED 16-1-2013 MADE IN CMP NO.512/2012 IN C.C.NO.33/2010 BEFORE THE JFCM COURT, KATTAPPANA. ANNEXURE-XII - TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE JFCM COURT, PEERMADE. ANNEXURE-XIII - TRUE COPY OF the ORDER DATED 17-12-2010 MADE IN C.M.P NO.85/2010 BY THE JFCM COURT, KATTAPPANA.

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RESPONDENTS' EXHIBITS : NIL.

//TRUE COPY//

P.A TO JUDGE

amk

A.HARIPRASAD, J.

Crl.M.C No.785 of 2013

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Dated this the 2^nd day of July, 2014.

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O R D E R

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Petition filed under Section 482 Cr.P.C. Petitioners

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are accused three and four in C.C No.33/2010 on the file of the Judicial First Class Magistrate Court, Peermade. They are implicated in Crime No.184/2006 of Kumily Police Station charged with offences punishable under Sections 354, 323 and 451 r/w Section 34 I.P.C. They are challenging Annexure XI

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order passed by the learned Magistrate under Section 319 Cr.P.C.

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Heard the learned counsel for the petitioners, learned

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counsel for the third respondent and the learned Public Prosecutor.

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Learned counsel for the petitioners submitted that

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two lawyers have been unnecessarily dragged into a criminal

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complaint. Allegation raised by PW1 (defacto complainant) is

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that the newly added accused persons along with plaintiff and

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Crl.M.C No.785 of 2013 2

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his friend (A1 and A2) entered her house during her absence and questioned her handicapped father in connection with a civil case. The second petitioner is the Advocate Commissioner appointed by the Civil Court to conduct a local inspection in the civil suit pending between the first accused and the defacto complainant. Annexure I, the affidavit filed along with a petition

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for issuance of commission, would show the purpose of inspection as follows :

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“1. Nature, lie and boundaries of the plaint schedule property and building therein.

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2. Ascertain who is residing in the plaint schedule property.

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3. Such other matters that are requested at the time of inspection.

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4. Prepare a Rough Sketch of the plaint schedule property.”

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Annexure II is the warrant issued to the

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Commissioner for local inspection. Learned counsel for the

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Crl.M.C No.785 of 2013 3

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petitioner would contend that the petitioner was discharging his duty as Officer of the court and in fact the defacto complainant manhandled him. It is an admitted fact that there is a case pending against the defacto complainant filed by the Advocate Commissioner.

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During the trial of C.C No.33/2010, the defacto complainant testified as PW1. She deposed before the court below that the original accused along with the petitioners trespassed into her house, physically assaulted her and outraged her modesty. Learned counsel for the defacto complainant submitted that immediately after the incident she filed a complaint before the police implicating the accused persons including the petitioners. However, it is alleged that the police dropped their names as they are highly influential people. Aggrieved by that action on the part of the police, the defacto complainant filed a private complaint. It happened to be

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Crl.M.C No.785 of 2013 4

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dismissed for non-prosecution as the defacto complainant, a person hailing from Kanpur, could not appear before the court. It is submitted therefore that the defacto complainant testified true

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facts, when she was examined as PW1 in the case.

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I have carefully perused the impugned order (Annexure XI) passed by the learned Magistrate by invoking power under Section 319 Cr.P.C. It is seen that the arraignment of the accused were made after taking evidence. On going through the evidence adduced by PW1, it can be seen that she made clear-cut allegations against the petitioners. I am not expressing any opinion as to the correctness of the allegations and the acceptability of oral evidence adduced by the defacto complainant against the petitioners. However, fact remains that I am not able to find any illegality in the order passed by the court below in implicating the petitioners as accused in the case. Learned Magistrate shall try and dispose of the matter on merit

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Crl.M.C No.785 of 2013 5

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untrammelled by any of the observations contained in this order. I am unable to find any reason to invoke jurisdiction of this

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court under Section 482 Cr.P.C to grant the relief sought in the petition.

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Therefore, Crl.M.C is dismissed without prejudice to the right of the petitioners to contest the case.

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All pending interlocutory applications will stand dismissed.

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amk

Shine Varghese v. State of Kerala

Case brief

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Shine Varghese v. State of Kerala

Case brief

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