Dismissed

Ajimon Varghese v. State of Kerala

Kerala HC18 Mar 2016Crl.MC/330/2016

Case brief

AI extract

What is this about?

The Kerala High Court disposed of the petitioners' plea to quash criminal proceedings arising from a private complaint converted into a prosecution under Section 244 Cr.P.C., holding that the stage was too premature to quash as the court was required to record pre-charge evidence first.

What did the court decide?

Disposed of the criminal miscellaneous petition holding that quashing at this stage is premature; liberty to avail other remedies.

Ajimon Varghese Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2016)

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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 B.KEMAL PASHA

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FRIDAY, THE 18TH DAY OF MARCH 2016/28TH PHALGUNA, 1937

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Crl.MC.No. 330 of 2016 ()

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CC.NO. 2505/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NJARAKKAL, ERNAKULAM DISTRICT

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PETITIONER(S)/ACCUSED NO.1 TO 8, 10 & 11:

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1. AJIMON VARGHESE, S/O.VARGHESE, AGED 49, PUTHUSSERY HOUSE, CHAKKARAKKADAVU,

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CHERAI P.O., PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

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2. E.V. VARGHESE, S/O.VARKEY (KUNJUVARKEY), AGED 80, ERALIL HOUSE, KOMARANTHIYIL, CHERAI P.O.,

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PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

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3. GEORGE ABRAHAM M. (ITTIYACHAN), S/O.GEORGE AGED 74, MAZHUVANCHERY PARAMBATH (THARAYIL),

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PANAMPILLY NAGAR P.O, ERNAKULAM, NOW RESIDING AT MAZHUVANCHERY PARAMBATH HOUSE, NEAR ALSA SHORE CREST APARTMENTS, NEAR FINE ARTS HALL, ERNAKULAM.

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4. JACOB, S/O.VARGHESE, AGED 81, PUTHUSSERY HOUSE, CHERAI P.O., PALLIPPURAM VILLAGE, KOCHI TALUK,

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ERNAKULAM DISTRICT.

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5. BINOY GEORGE, S/O.GEORGE, AGED 61, PUTHUSSERY HOUSE, CHERAI P.O., PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

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6. K.M. SABU, S/O.MATHEW, AGED 66, KOCHAKKAN HOUSE (KOZHIKKAL), CHERAI P.O., PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

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7. E.K. POULOSE (BENNY), S/O.KORATHU, AGED 55, ERALIL HOUSE, CHERAI P.O., PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

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8. ELDHO JOHN, S/O.JOHN, AGED 42,ERALIL HOUSE, GURUDEVA LANE, CHERAI P.O., PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

2/-

sts

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CRL.MC.NO.330/2016

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9. P.I. GEORGE, S/O.ITTOOP P.M., AGED 63, PUTHUSSERY HOUSE, CHERAI P.O., PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

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10. BIJU VARGHESE (BYJU), S/O.E.V.VARGHESE, ERALIL HOUSE, FLAT NO.2A, EXPRESS TOWERS, KALOOR P.O., ERNAKULAM.

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BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

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RESPONDENT(S)/STATE & COMPLAINANT:

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

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2. FR.TUBY BABY @ GHEEVARGHESE BABY, S/O.BABY, PRIEST (SHOWN AS VICAR), ST.MARY'S JACOBITE SYRIAN ORTHODOX CHURCH (SHOWN AS ST.MARY'S ORTHODOX (JACOBITE SYRIAN CHURCH), CHERAI P.O, ERNAKULAM DIST. PIN-683 514

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R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE R2 BY SRI.S.SREEKUMAR,SENIOR ADVOCATE ADV. SRI.L.RAM MOHAN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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Crl.MC.No. 330 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEX.A -	TRUE COPY OF CC NO.2505/2015 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, NJARAKKAL, ERNAKULAM DISTRICT.
ANNEX.B -	TRUE COPY OF THE ORDER DATED 29.11.2012 PASSED IN IA NO.2562/2012 IN AS NO.541/2002 ON THE FILE OF THIS HON'BLE COURT.
ANNEX.C -	TRUE COPY OF THE JUDGMENT DATED 18.10.2013 PASSED IN AS NO.541/2002 ON THE FILE OF THIS HON'BLE COURT.
ANNEX.D -	TRUE COPY OF THE MINUTES DATED 29.07.2012 OF THE MANAGING COMMITTEE.
ANNEX.E -	TRUE COPY OF THE TRUST DEED EXECUTED ON 03.10.2012
ANNEX.F -	TRUE COPY OF THE MINUTES DATED 07.10.2012 OF THE MANAGING COMMITTEE OF THE CHURCH.
ANNEX.G -	TRUE COPY OF THE SEC.92 PETITION (SUBSTANTIALLY THE SUIT) IN OS NO.29/2014 ON THE FILE OF ADDITIONAL DISTRICT COURT, ERNAKULAM.
ANNEX.H -	TRUE COPY OF THE WRITTEN STATEMENT FILED IN ANNEXURE-G SUIT.
ANNEX.I -	TRUE COPY OF THE IA NO.5908A/2014 FILED IN ANNEXUR-G SUIT.
ANNEX.J -	TRUE COPY OF THE COUNTER AFFIDAVIT DATED 30.09.2013 FILED IN ANNEXURE-I PETITION.
ANNEX.K -	TRUE COPY OF THE ADDITIONAL AFFIDAVIT FILED IN SUPPORT OF ANNEXURE-I PETITION.
ANNEX.L-	TRUE COPY OF THE COUNTER AFFIDAVIT FILED TO ANNEXURE-K, ADDITIONAL AFFIDAVIT
ANNEX.M -	TRUE COPY OF THE COUNTER AFFIDAVIT FILED TO ANNEXURE-I BY THE RESPONDENTS NO.1,2,7 AND 10.
ANNEX.N -	TRUE PHOTOCOPY OF THE NOTICE SENT TO THE RESPONDENT NO.2 AND ANOTHER ON 08.10.2015

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/TRUE COPY/

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P.A.TO JUDGE

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RESPONDENT(S)' ANNEXURES: NIL

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sts

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B.KEMAL PASHA, J.

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================ Crl.M.C. No. 330 of 2016

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======================= Dated this the 18^th day of March, 2016

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O R D E R

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Initially, a crime was registered on the basis of a private complaint, which was forwarded to the Police under Section 156(3) Cr.P.C. Ultimately, after investigation, the matter was referred and a refer report was filed under Section 173(2) Cr.P.C. On getting refer notice, the 2^nd respondent preferred a protest complaint before the court below. The court below has taken cognizance of it and numbered the case as C.C.No.2505/2015.

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Presently, the proceedings are sought to be quashed by the petitioners, who are A1 to A8, A10 and A11 before the court below.

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Crl.M.C. No. 330 of 2016

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-: 2 :-

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Heard Adv.Sri.Sajan Varghese, the learned counsel for the petitioners, Adv.Sri.S.Sreekumar, the learned senior counsel for the 2^nd respondent and the learned Public Prosecutor.

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When it is a private complaint, the present stage is one under Section 244 Cr.P.C. Since it is a warrant trial on a case instituted otherwise than on a police report, the court below has to record pre-charge evidence in the matter. All such evidence, as may be adduced by the complainant, has to be recorded. In such case, the petitioners will get an opportunity to controvert the evidence by subjecting those witnesses to cross-examination even prior to the stage of framing charges. Thereafter, the court below has to proceed with the matter either under Section 245 Cr.P.C in case of a discharge or under Section 246 Cr.P.C.

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When the petitioners are entitled to that much opportunity, this Court is of the view that the present stage is too premature to conclude that the allegations

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Crl.M.C. No. 330 of 2016

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-: 3 :-

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against the petitioners are false.

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With liberty to the petitioners to have recourse to

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the aforesaid procedure, this Crl.M.C. is disposed of.

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Sd/-

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B.KEMAL PASHA, JUDGE

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stu

Ajimon Varghese v. State of Kerala

Case brief

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Ajimon Varghese v. State of Kerala

Case brief

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