Allowed

A.K.Viswanathan, v. Angamali Municipality

Kerala HC5 Nov 2019Crl.MC/5211/2019

Case brief

AI extract

What is this about?

Petitioners filed quashing petitions under Section 482 CrPC against proceedings for insulting the National Flag. The court held ingredients of offence were not made out due to lack of intent and allowed petitions, quashing proceedings and noting lack of sanction violated Section 197 CrPC.

What did the court decide?

Proceedings in C.C.No.629/2017 initiated based on the complaint are quashed.

A.K.Viswanathan, Vs Angamali Municipality — Criminal Trial and Appeal | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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Crl.MC.No.5211 OF 2019(B)

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AGAINST THE ORDER IN CC 629/2017 OF JUDICIAL FIRST CLASS MAGIST. COURT, ANGAMALY

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CRIME NO.1529/2015 OF Angamali Police Station , Ernakulam

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PETITIONER:

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A.K.VISWANATHAN,

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S/O. PAPPANKUTTY, EDANGATIL HOUSE, MADAPPALLY P.O, CHANGANASSERY, KOTTAYAM

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BY ADVS.

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SRI.JOBY CYRIAC SRI.R.PREM SANKAR

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SRI. RAJESH S. SUBRAMANIAN

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RESPONDENTS:

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1 ANGAMALI MUNICIPALITY REPRESENTED BY ITS SECRETARY 683572

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

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R1 BY SRI. P.P.THAJUDEEN, SC, ANGAMALY MUNICIPALITY R2 BY SRI E C BINEESH -PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.10.2019, ALONG WITH Crl.MC.5302/2019(C), THE COURT ON 05.11.2019 PASSED THE FOLLOWING:

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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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 R. NARAYANA PISHARADI

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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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Crl.MC.No.5302 OF 2019(C)

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AGAINST THE ORDER IN CC 629/2017 OF JUDICIAL FIRST CLASS MAGIST. COURT, ANGAMALY

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CRIME NO.1529/2015 OF Angamali Police Station , Ernakulam

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PETITIONER/ACCUSED NO.2:

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ANOOP.A AGED 34 YEARS S/O. AYYAPPAN PILLAI, SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION, KOLLAM RURAL, RESIDING AT KOTTAKATTU HOUSE, PULIYILA KARA, PALLIMOL VILLAGE, KOLLAM - 691515.

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BY ADVS. SRI.MATHEW JOHN (THARAMUTTOM) SRI.M.SHYJU

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RESPONDENTS/COMPLAINANT:

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1 ANGAMALY MUNICIPALITY REPRESENTED BY ITS SECRETARY, S. JAYAKUMAR - 683572.

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

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R1 BY SRI. P.P.THAJUDEEN, SC, ANGAMALY MUNICIPALITY R2 BY SMT M.K PUSHPALATHA,PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.10.2019, ALONG WITH Crl.MC.5211/2019(B), THE COURT ON 05.11.2019 PASSED THE FOLLOWING:

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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R.NARAYANA PISHARADI, J ************************ Crl.M.C.Nos.5211 of 2019 &

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5302 of 2019

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Dated this the 5^th day of November, 2019

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O R D E R

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These petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for quashing the proceedings against the petitioners in the case C.C.No.629/2017 on the file of the Court of the Judicial First Class Magistrate, Angamaly.

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The petitioner in Crl.M.C.No.5211/2019 is the first accused and the petitioner in Crl.M.C.No.5302/2019 is the second accused in the aforesaid case. For the sake of convenience, they shall be hereinafter referred to as 'the first accused' and 'the second accused' respectively, at appropriate stages. The documents are referred to as they are produced in Crl.M.C.No. 5302/2019.

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The first accused was the Circle Inspector and the second accused accused was the Sub Inspector of Angamaly police station. The offences alleged against them are punishable under Section 447

¶45

Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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read with 34 I.P.C and Section 2 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as 'the Act').

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The case against the petitioners was instituted on the basis of a complaint filed by the Secretary of Angamaly Municipality. The material averments in the aforesaid complaint are the following: On 17.08.2015, the first accused was working as the Circle Inspector, Angamaly and the second accused was working as the Sub Inspector of Angamaly police station. Usually, National Flag is hoisted in the Municipalities every day at 06.00 hours and it would be lowered down at 18.00 hours. On 17.08.2015 also, the National Flag was hoisted in the Angamaly Municipality at 06.00 hours. The National Flag is hoisted on every day in the Municipality on the flag post near the statue of Mahatma Gandhi. On 17.08.2015, at about 11.30 hours, the two accused in the case and four other policemen trespassed into the compound of the Municipality. The second accused, as per the direction of the first accused, lowered down the National Flag and put it into the police vehicle. The accused have committed such act on the misunderstanding that, the National Flag which was hoisted on the Independence Day was allowed to remain there without lowering it down on that day. The act of the accused amounts to insult to the National Flag.

¶49

Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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The complaint against the accused was filed in the court below on 26.07.2016, after eleven months of the alleged incident. On

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26.07.2017, after one year, the learned Magistrate passed the following order:

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“ Complainant absent, applied. Complainant is a public servant, hence no need to take sworn statement. Hence considering the materials I am satisfied that there is prima facie materials to proceed, hence taken on file as CC 629/2017. Issue summons to accused. Call on 26.12.2017.”

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The petitioners have challenged the aforesaid order of the learned

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Magistrate taking cognizance of the offences and issuing summons to them.

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Heard the learned counsel for the petitioners and the first respondent Municipality and also the learned Public Prosecutor.

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Cognizance of the offences taken by the learned Magistrate is challenged by the petitioners on two grounds : (1) Even if the allegations in the complaint are accepted as true, the offences alleged against the petitioners are not made out. (2) The petitioners are public servants and the act allegedly done by them was in the discharge of

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their official duties and therefore, cognizance of the offences taken by the court without the previous sanction of the State Government is

¶59

Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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bad in law.

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Before examining whether the allegations in the complaint attract the offences alleged against the petitioners, it is necessary to state the circumstances under which the petitioners had committed the acts alleged against them.

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On 17.08.2015, a case was registered against the then Secretary of Angamaly Municipality as Crime No.1529/2015 under Section 2 of the Act. The allegation in that case is that the National Flag which was hoisted in front of the office of the Municipality on 15.08.2015, the Independence Day, was not lowered down till noon on 17.08.2015. Charge sheet was filed in that case against the then Secretary of the Municipality on 15.01.2016. It is to be noted that the complaint against the petitioners herein was filed only on 26.07.2016.

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Annexure-A2 is the copy of the first information report in Crime No.1529/2015. A perusal of the same shows that it was on the bona fide belief that the National Flag hoisted on the Independence Day was not lowered down that the second accused lowered it down at 12:10 hours on 17.08.2015 and seized the same as per a mahazar.

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Section 2 of the Act provides that, whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. Explanation 4 to Section 2 of the Act states the acts which amount to showing disrespect to the Indian National Flag.

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Even as per the averment in Annexure-A1 complaint, it was on the misunderstanding that the National Flag hoisted on the Independence Day was not lowered down that the petitioners lowered it down on 17.08.2015 and seized it. In other words, it is indirectly admitted in the complaint that the petitioners had no intention to insult or to show disrespect to the National Flag.

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Even assuming that the averment in Annexure-A1 complaint that the National Flag lowered down by the second accused was one hoisted on the morning of 17.08.2015 on the flag post, it cannot be found that he had any intention to insult or to show disrespect to the National Flag by lowering it down. Even as per the averment in the complaint, the petitioners had done so on a misunderstanding that the National Flag which was hoisted on the flag post on the Independence Day was thereafter not lowered down. The act done by the petitioners are purported to be in discharge of their

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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official duty. This is very clear from Annexure-A2 first information report registered against the Secretary of the first respondent Municipality. It is specifically stated in Annexure-A2 first information report that, on usual days, the National Flag was being hoisted on the top of the Municipality office building but on 15.08.2015, as part of the celebrations of the Independence Day, the flag was hoisted on a post near the statue of Mahatma Gandhi and it was not lowered down till the noon on 17.08.2015. The first information report in Crime No. 1529/2015 was registered as early as on 17.08.2015. The complaint against the petitioners was filed only on 26.07.2016. Therefore, it cannot be found that the recitals in Annexure-A2 first information report are the result of afterthought or deliberation.

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Section 3.6 of Part III of the Flag Code, 2002 states that where the practice is to fly the Flag on any public building, it shall be flown on that building on all days including Sundays and holidays and, except as provided in the Code, it shall be flown from sun-rise to sunset irrespective of weather conditions. It is also provided that the Flag may be flown on such a building at night also but this should be only on very special occasions. Section 3.39 of Part VIII of the Flag Code, 2002 provides that, normally the National Flag should be flown only on important public buildings such as High Courts, Secretariats,

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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Commissioners' Offices, Collectorates, Jails and offices of the District Boards, Municipalities and Zilla Parishads and Departmental/Public Sector Undertakings. A conjoint reading of these provisions in the Flag Code indicate that when National Flag is flown in any public office, it shall be flown on the building of such public office. In the instant case, the petitioners, who are police officials, saw the National Flag hoisted on a flag post in the compound of the Municipality. The Flag was not on the building but on a flag post in the compound. It is probable that they misunderstood, as stated in the complaint itself, that it was the Flag hoisted on the Independence Day. In such circumstances, it cannot be found that the petitioners had intentionally shown disrespect to the National Flag by lowering it down and seizing it and registering a case against the Secretary of the Municipality.

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The offence punishable under Section 447 IPC is also alleged against the petitioners. Since the petitioners had entered into the compound of the Municipality in connection with their official duties, it cannot be found that such entry constituted the offence of criminal trespass.

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In the aforesaid circumstances, I find that the ingredients of the offences alleged against the petitioners are not made out from Annexure-A1 complaint. Continuation of the prosecution against the

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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petitioners would be an abuse of the process of the court.

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Section 197(1) of the Code provides that when any person who is or was a Judge or Magistrate or a public servant, not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Central or the State Government, as the case may be. Section 197(2) of the Code provides that no Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. Section 197(3) of the Code states that the State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

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The State Government has issued a Notification on

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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16.12.1977 directing that the provisions of sub-section (2) of Section 197 of the Code shall apply to all members of Kerala State Police Force charged with maintenance of public order. By the notification above mentioned, the provisions of sub-section (2) of Section 197 of the Code have been made applicable to members of Kerala Police charged with 'maintenance of public order' who form a class of the police force. 'Maintenance of public order' can fall within the definition of 'law and order', the former being an extension of the latter. Though conceptually distinct they are perhaps two sides of the same coin. It is unnecessary that there should be anything specific to show that those charged with maintenance of 'law and order' have also been entrusted with the maintenance of 'public order' which is not so different or unrelated to require a specific investiture but is implicit in the former function (See Sarojini v. Prasannan : 1996 (2) KLT 859 ).

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In the instant case, there can be no doubt with regard to the fact that the petitioners, who are police officials, have committed the acts alleged against them while acting or purporting to act in discharge of their official duties.

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The first accused is a Circle Inspector. He is a public servant removable from the office only by the State Government (See Muralidharan Nair v. Saji M. Antony : ILR 2013(1) Kerala 94 ).

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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Cognizance taken by the learned Magistrate in respect of the offence allegedly committed by the first accused while purporting to act in discharge of his official duties, without the previous sanction of the State Government, is bad in law.

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The second accused is not a public servant removable from service only by the State Government. But, in view of the notification referred to earlier and the decision of this Court in Sarojini (supra), cognizance taken by the learned Magistrate in respect of the offences allegedly committed by him, without the previous sanction of the State Government, is bad in law.

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In the aforesaid circumstances, the proceedings against the petitioners are liable to be quashed.

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Consequently, the petitions are allowed. The entire proceedings against the petitioners in the case C.C.No.629/2017 on the file of the Court of the Judicial First Class Magistrate, Angamaly, based on Annexure-A1 complaint, are hereby quashed.

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R.NARAYANA PISHARADI, JUDGE

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jsr/04/11/2019

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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APPENDIX OF Crl.MC 5211/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE MEMORANDUM OF CRIMINAL COMPLAINANT DATED 26-06-2012

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ANNEXURE A2 TRUE COPY OF THE SUMMONS DATED 08-05-2019 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY

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ANNEXURE A3 TRUE COPY OF THE FIR IN CRIME NO. 1529/2015 ANGAMALY POLICE STATION. ANNEXURE A4 TRUE COPY OF THE PROCEEDINGS IN CC NO. 629/2017 ON THE FILE OF JFCM COURT, ANGAMALY

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RESPONDENTS EXHIBITS: NIL

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Crl.MC.No.5211 OF 2019(B) & Crl.MC.No.5302 OF 2019(C)

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APPENDIX OF Crl.MC 5302/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED 26.07.2016 FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY. ANNEXURE A2 TRUE COPY OF THE F.I.R. IN CRIME NO.1529/2015 DATED 17.08.2015 OF ANGAMALY POLICE STATION.

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ANNEXURE A3 TRUE COPY OF THE CHARGE SHEET IN F.I.R.NO.1529/2015 DATED 15.01.2016 IN C.C.NO.629/2017 PENDING ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY.

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ANNEXURE A4 CERTIFIED COPY OF THE PROCEEDINGS BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY IN C.C.NO.629/2017 DURING THE PERIOD FROM 26.07.2016 TO 20.05.2019.

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ANNEXURE A5 TRUE COPY OF THE SEIZURE MAHAZAR DATED 17.08.2015 IN CRIME NO.1529/2015 OF ANGAMALY POLICE STATION.

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RESPONDENTS EXHIBITS: NIL

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TRUE COPY

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P.A TO JUDGE

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LSN

A.K.Viswanathan, v. Angamali Municipality

Case brief

What is this about?

What did the court decide?

A.K.Viswanathan, v. Angamali Municipality

Case brief

What is this about?

What did the court decide?

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