Partly allowed

Dinesh v. State of Kerala

Kerala HC23 Mar 2016Crl.MC/3938/2013

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous application seeking to quash proceedings due to vague materials and investigation delay. The court directed applicants to cooperate, deferred arrest, and ordered a six-month investigation timeline.

What did the court decide?

Directed petitioners to appear and cooperate; deferred arrest; investigation to be completed within six months; bail on execution of bond after interrogation.

Dinesh Vs State of Kerala — Quashing and FIR | 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 RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 23RD DAY OF MARCH 2016/3RD CHAITHRA, 1938

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Crl.MC.No. 3938 of 2013

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CRIME NO. 101/2013 OF MAVELIKKARA EXCISE RANGE OFFICE , ALAPPUZHA

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PETITIONERS/ACCUSED NOS. 3 TO 5:

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DINESH S/O DIVAKARAN, KOTTATHAZHA KIZHEKKETHIL HOUSE,

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PONAKAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK.

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JOMON JOSEPH, AGED 31 YEARS, S/O JOSEPH, ITHIPPALLIL HOUSE, PULINKUNNU MURI, KUTTANADU

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TALUK, ALAPPUZHA DISTRICT.

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SURESH, AGED 37 YEARS, S/O VASU, MAYANPURACKAL PADIYATHIL HOUSE, MANJADITHARA

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MURI, BHARANIKKAVU VILLAGE, MAVELIKKARA TALUK.

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BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.K.S.PRAVEEN SRI.C.C.THOMAS (SR.)

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RESPONDENT(S)/ COMPLAINANT:

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STATE OF KERALA

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REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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THE WELFARE FUND INSPECTOR KERALA TODDY WORKERS WELFARE FUND BOARD, THIRUVAMBADY,

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ALAPPUZHA, PIN:688 002.

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R2 SRI.JOY GEORGE, SC, KERALA TODDY WORKERS WELFAREFUND BOARD

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BY SRI.JOY GEORGE, SC, KERALA TODDY WORKERS WELFARE F BY PUBLIC PROSECUTOR SMT. V.P. SATHI

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-032016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 3938 of 2013

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APPENDIX

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ANNEXURES

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ANNEUXRE A: CERTIFIED COPY OF THE MAHAZAR DATED 28.8.2013 PREPARD BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, MAVELIKKARA.

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ANNEXURE B: CERTIFIED COPY OF THE CRIME AND OCCURENCE REPORT IN CR NO.101/2013 PREPARED BY THE EXCISE INSPECTOR, MAVELIKKARA EXCISE RANGE.

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ANNEXURE C: CERTIFIED COPY OF THE REPORT DATED 3.9.2013 SUBMITTED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT, KAYAMKULAM.

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ANNEXURE D - PHOTOCOPY OF THE STATEMENTS SUBMITTED BY THE SECRETARY OF CIT UNION BEFORE R2 IN RESPECT OF 6 TODDY SHOPS IN GROUP NO.II OF KAYAMKULAM EXCISE RANGE FOR THE YEAR 2011-12

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ANNEXURE E- PHOTOCOPY OF THE STATEMENTS SUBMITTED BY THE SECRETARY OF CIT UNION BEFORE R2 IN RESPECT OF 6 TODDY SHOPS IN GROUP NO.III OF KAYAMKULAM EXCISE RANGE FOR THE YEATR 2011-12

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ANNEXURE F - PHOTOCOPY OF THE STATEMENTS SUBMITTED BY THE SECRETARY OF CIT UNION BEFORE R2 IN RESPECT OF 7 TODDY SHOPS IN GROUP NO.IV OF KAYAMKULAM EXCISE RANGE FOR THE YEATR 2011-12

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ANNEXURE G - PHOTOCOPY OF THE ORDER DATED 26.8.2013 IN CRL.M.A.6189 / 2013 IN CRL.M.C.3269 /2013 PASSED BY THIS HONOURABLE COURT

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//True Copy//

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P.S.To Judge

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RAJA VIJAYARAGHAVAN.V., J

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- - - - Crl.M.C.3938 of 2013

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- - - - Dated 23^rd March, 2016

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ORDER

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1.The accused Nos.3 to 5 in C.R.101 of 2013 of Mavelikkara Excise Range have filed this petition under Section 482 of the Code of Criminal Procedure. The prayer is to quash all further proceedings in the aforesaid crime.

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2.The prosecution allegation is that search conducted by the Excise party on 28.8.2013, at about 4.45 p.m, in the back yard of the residential premises of one Abhilash, yielded 350 litres of spirit. One Rajendran, who is arrayed as the 2^nd accused, was allegedly present in the premises and he was apprehended. Prosecution alleges that the role of the 2^nd accused -Rajendran , as the owner of

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Crl.M.C.3938/13

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the contraband article was disclosed by Abhilash. Rajendran, on being questioned disclosed that the contraband articles were stored by him at the instance of the petitioners who allegedly are the licencees of toddy shop Nos.28 in Group No.IV, toddy shop No.10 in Group No.II and toddy shop No.18 in Group No.III. He is alleged to have disclosed that the contraband items were stored for the purpose of mixing with toddy during the Onam season.

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3.The implication of the petitioners in this matter is on the basis of vague materials and the initiation of the criminal proceedings is nothing but an abuse of process of law is the main ground raised in this petition .

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4.I have heard the learned Senior counsel appearing for the petitioners as well as the

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Crl.M.C.3938/13

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learned Public Prosecutor.

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5.The learned Senior counsel would submit that the petitioners have been implicated solely on the basis of the alleged confessional statement made by the 2^nd accused, who claims to be the supervisor of three separate toddy shops and that too in separate territories. According to the learned counsel, the aforesaid confessional statement cannot be the sole basis of prosecution of the petitioners and in the absence of any cogent materials the prosecution is bad. According to the learned Senior counsel, the implication of the petitioners was at the instance of the rival contractors and it is obvious on a perusal of materials. The prosecution has not been able to unearth any materials till date. It is finally submitted that the pendency of criminal

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Crl.M.C.3938/13

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prosecution as against the petitioners would be detrimental to the conduct of the business of running toddy shops and prayed that the proceedings initiated them be quashed.

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6.The learned Public Prosecutor would controvert the contentions of the learned Senior counsel. According to the learned Public Prosecutor, it was revealed during the course of investigation that the 1^st accused Abhilash had kept spirit in the premises of his house and the same was intended to be used for the purpose of mixing with the toddy. It is further submitted that, the investigation had revealed that the spirit seized in the case was kept by the 2^nd accused, who is the Supervisor of the toddy shops of the petitioners and it was done with the knowledge and concurrence of the petitioners.

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7.I take specific note of the fact that this Court

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Crl.M.C.3938/13

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had passed an interim order dated 11.10.2013 by which all further proceedings pursuant to C.R.101 of 2013 was stayed for a period of two months. Later, as per the modified order dated 21.10.2014, the interim order was extended granting liberty to the Investigating officer to proceed with the investigation but the arrest of the petitioners was ordered to be deferred until further orders.

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8.The learned Public Prosecutor would submit

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based on instructions, that in view of the interim order passed by this Court, the Circle Inspector of Excise Range, Mavelikkara, on whom the investigation was entrusted by the Deputy Commissioner of Excise, Alappuzha, on 30.8.2013, has not been able to complete the investigation.

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It is by now settled that when a prosecution is

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sought to be quashed at the initial stage, the test to be applied by the Court is, as to whether uncontroverted allegations as made in the earliest records establish the offence. If on a prima facie perusal of the records , it is borne out that foundation of criminal case is laid against the petitioners, this court will not be justified in invoking its extraordinary powers under S.482 Cr.P.C. Inherent jurisdiction under S.482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. It cannot be said at this stage that the allegations in the FIR or the complaint taken at face value and accepted in its entirety , no offence is made out against the petitioners .On facts , this Court is of the view that the investigation has to proceed and reach

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its logical conclusion .

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10.Though there was specific direction to the Investigating officer to continue with the investigation in order dated 21.10.2014 , it is unfortunate that no progress has been made. I find some merit in the submission of the learned public prosecutor that it was in view of the pendency of the interim order that the delay was occasioned.

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11.In the peculiar facts and circumstances , after having considered the rival submissions in detail, I am of the view in exercise of the inherent powers of this Court under section 482 of the Code , the following order can be passed to secure the ends of justice.

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12.The petitioners are directed to appear before the Investigating officer and cooperate with the investigation. As directed in the interim order

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dated 21.10.2014, their arrest shall be deferred. The Investigating officer shall be at liberty to request for the presence of the petitioners as and when required. After completion of interrogation the petitioners shall be produced before the learrned Magistrate concerned, which Court, on an application for bail being moved by the petitioners, shall release them on bail on them executing a bond for Rs.50,000 /- (Rupees Fifty Thousand) each

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with two solvent sureties each for the like sum to the satisfaction of the court. The learned Magistrate will be at liberty to impose appropriate conditions to ensure the appearance of the petitioners as and when required.

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13.All endeavor shall be made by the Investigating Agency to complete the

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investigation within a period of six months. Final report shall be laid before the jurisdictional Magistrate after completion of investigation and if the petitioners are in any way aggrieved, they are at liberty to challenge the same in accordance with law.

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Crl.M.C is disposed of as above.

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Sd/-

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RAJA VIJAYARAGHAVAN.V. Judge

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Mrcs/23.3.2016

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//True Copy//

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P.S.To Judge

Dinesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dinesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

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