Allowed

Ganeshan P.K v. State of Kerala

Kerala HC5 Apr 2018Crl.MC/1365/2018

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a Criminal Miscellaneous Petition filed by an accused challenging proceedings under Section 380 IPC (theft) by invoking jurisdiction under Section 482 Cr.P.C. The court quashed the proceedings based on lack of direct witnesses, scanty evidence, and a confirmed settlement between parties.

What did the court decide?

The Criminal Miscellaneous Petition was allowed and the entire criminal proceedings in CC No. 879/2017 standing pending in the lower court were quashed.

Ganeshan P.K Vs State of Kerala — Quashing and FIR | Kerala HC (2018)

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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 SUNIL THOMAS

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THURSDAY, THE 5TH DAY OF APRIL 2018 / 15TH CHAITHRA, 1940

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Crl.MC.No. 1365 of 2018

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PENDING AS CC 879/2017 of JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIPUNITHURA

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CRIME NO. 2138/2016 OF HILL PALACE POLICE STATION , ERNAKULAM

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PETITIONER(S)/ACCUSED

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GANESHAN P.K AGED 38 YEARS, S/O. PURUSHOTHAMAN NAIK, KUTTIKKATTIL HOUSE, ELAMANA ROAD, TRIPUNITHURA, ERNAKULAM.

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BY ADVS.SRI.PRASUN.S SRI.P.V.SREENIJIN SMT.BABY SNOWDIT SRI.PRAMOD DAS LOHYA

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RESPONDENT(S)/STATE & CWS1 AND 2 VICTIMS:

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

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2. PREMA NAIK

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AGED 52 YEARS, W/O. LAKSHMANA NAIK,

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KUTTIKKATTIL HOUSE, ELAMANA ROAD,

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TRIPUNITHURA, ERNAKULAM - 682 301.

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3. SULOCHANA

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AGED 80 YEARS, S/O. SREEDHARA PAI,

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CHANIMADHAM HOUSE, NEAR CHAKKAMKULANGARA TEMPLE,

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TRIPUNITHURA KARA, NADAMA VILLAGE, ERNAKULAM - 682 301.

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R2 & 3 BY ADV. SRI.M.REVIKRISHNAN R1 BY SRI.AMJAD ALI, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-04-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1365 of 2018

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APPENDIX

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PETITIONER(S) EXHIBITS

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ANNEXURE-A1 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.2138 OF 2016 OF HILL PALACE POLICE STATION.

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ANNEXURE-A2 THE AFFIDAVIT DATED 24.02.2018 SWORN BY THE 2ND RESPONDENT HEREIN.

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ANNEXURE-A3 THE AFFIDAVIT DATED 24.02.2018 SWORN BY THE 3RD RESPONDENT HEREIN.

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RESPONDENT(S)' EXHIBITS

NIL

R.AV

//TRUE COPY//

PA TO JUDGE

SUNIL THOMAS, J.

Crl.M.C.No.1365 of 2018

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Dated this the 5^th day of April, 2018

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O R D E R

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The petitioner herein stands arrayed as the sole accused in CC.No.879/2017 on the files of Judicial First Class Magistrate Court, Tripunithura arising from Crime No.2138/2016 of Hill Palace Police Station for offence punishable under section 380 of the Indian Penal Code.

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It was alleged by the prosecution that, the petitioner herein on 17.12.2016, at 11.45 p.m., trespassed into the bed room of the defacto complainant - third respondent and stole a gold chain weighing about four sovereigns, worth Rs.65,000/-. Pursuant to the crime registered, investigation was conducted and the petitioner herein was implicated as the sole accused. After investigation, final report was laid and the matter is now pending as CC.No.CC.No.879/2017 on the files

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Crl.M.C.No.1365 of 2018

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of Judicial First Class Magistrate Court, Tripunithura.

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The petitioner has approached this court contending that he is absolutely innocent of the crime and that he was implicated merely on the basis of suspicion. It was also contended that there was no proper recovery of gold ornaments and even now, the evidence let by the prosecution stand on the realms of doubt only. It was also contended by the learned counsel for the petitioner that the parties have resolved their dispute and it is evidenced by AnnexureA2 affidavit, affirmed by the defacto complainant and the true owner of the gold ornaments, who has affirmed Annexure-A3 affidavit. The learned counsel for the second and third respondents reiterated the settlement evidenced by the above affidavits.

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Since the allegation is serious, the learned counsel for the petitioner chose to argue the matter on merits also. In the nature of the allegation, I feel that the offence alleged against the petitioner is serious.

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Crl.M.C.No.1365 of 2018

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The learned Public Prosecutor on instructions submitted that the petitioner herein has no criminal antecedents and that the matter was stated to the settled.

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The learned counsel for the petitioner highlighted that there is no direct witness to the incident. It is true that the petitioner herein was roped in basically on the basis of a suspicion. It also seems that there was a recovery. However, the article was in the form of an ingot. The learned counsel for the petitioner pointed out that the defacto complainant and the victim have now taken a definite stand that they have no grievance against the petitioner herein. Pointing out that, the learned counsel for the petitioner contended that hence there is no chance of a successful prosecution of the petitioner herein. It is true that the evidence of the prosecution is largely dependent on the recovery as well as the oral testimony to be let in by the respondents 2 and 3. Both have not supported the prosecution case. Hence

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Crl.M.C.No.1365 of 2018

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there is no chance of a successful prosecution. However, that alone cannot be criteria for deciding whether section 482 Cr.P.C is liable to be invoked. Definitely, the nature of allegation is also to be looked into. Even though, as mentioned above, serious allegations are made, the material to support it appears to be scanty. The petitioner herein has no criminal antecedents also. It was contended by the learned counsel for the petitioner herein that even the possibility of a momentary impulsive act, without any serious preparation of mind, cannot also be ruled out in the facts and circumstances of the case. This according to the counsel is fortified by the fact that the petitioner herein is not involved in any other crime. He is stated to be a married person with children. Considering this fact and the age of the petitioner herein, I feel that provision under section 482 Cr.P.C can be invoked to meet the ends of justice, especially in the light of the stand taken by the respondents 2

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Crl.M.C.No.1365 of 2018

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and 3. Having considered this, I am inclined to invoke the jurisdiction under section 482 Cr.P.C to quash the entire criminal proceedings.

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Accordingly, Crl.M.C is allowed. All further proceedings in CC.No.879/2017 on the files of Judicial First Class Magistrate Court, Tripunithura arising from Crime No.2138/2016 of Hill Palace Police Station will stand quashed.

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Sd/-

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SUNIL THOMAS, JUDGE

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R.AV

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//True Copy//

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PA to Judge

Ganeshan P.K v. State of Kerala

Case brief

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Ganeshan P.K v. State of Kerala

Case brief

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