Disposed

Santhosh Kumar.R v. State of Kerala

Kerala HC11 Nov 2020Crl.MC/5456/2017

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the petitioner's plea to quash the FIR as the stage was crossed, but granted liberty to file a discharge application in the trial court if charges were not framed. The Court directed the Registry to monitor the investigating officer's compliance with a previous order to file an affidavit of apology for procedural lapses.

What did the court decide?

Liberty accorded to file a discharge application in the Court below; Registry to ensure investigating officer files apology affidavit.

Santhosh Kumar.R Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2020)

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942

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Crl.MC.No.5456 OF 2017

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CRIME NO.1489/2017 OF Kayamkulam Police Station , Alappuzha

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PETITIONER/S:

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SANTHOSH KUMAR.R S/O. RAJAPPAN, AGED 44 YEARS, KOCHUPURAYIL, THAZHAKKARA,MAVELIKKARA, NOW RESIDING AT POLICE QUARTERS, U-2,NEAR MINI CIVIL STATION, MAVELIKKARA.

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BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM(SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION,ALAPPUZHA DISTRICT).

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2 TANIYA K.K RANI KALATHILPARAMBIL HOUSE,THAMMANAM P.O, VYTTILA,ERNAKULAM - 682 032.

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R1-2 BY ADV. SRI.P.K.RAVISANKAR

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OTHER PRESENT:

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SAIGI JACOB PALATTY PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.5456/2017

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ALEXANDER THOMAS, J.

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Crl.M.C. No.5456 of 2017

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Dated this the 11^th day of November, 2020

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O R D E R

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The prayer in the aforecaptioned Criminal Miscellaneous Case filed on 07-08-2017, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:-

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"…..to allow this Crl.M.C. Quashing Annexure I First Information Report in Crime No.1489/2017, pending before the Judicial Ist Class Magistrate's Court, Kayamkulam, so far as the petitioner is concerned.”

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Heard Sri.Pirappancode V.S. Sudheer, learned counsel for the petitioner/3rd accused, Sri. Saigi Jacob Palatty, learned Public Prosecutor, appearing for the 1st respondent State of Kerala and Sri. P.K Ravisankar, learned counsel appearing for the contesting respondent No.2 (lady de-facto complainant).

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The above Crl. M.C has been filed on 07.08.2017 wherein the sole challenge directed therein was against the impugned Annexure I, FIR in crime No.1489/2017 of

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Crl.MC.No.5456/2017

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Kayamkulam police station, in which the petitioner has been arrayed as the accused No.3 among the 4 accused for offences punishable under Section 420 read with Section 34 of I.P.C on the basis of the First Information Statement of the 2nd respondent lady de facto complainant and the earlier petition submitted by her before the Director General of Police.

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Earlier the investigating agency had not given any

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instructions to the learned Public Prosecutor as to the subsequent developments in the case and as to whether investigation has been completed and whether the final report has been filed in this case and if so whether the final report is filed by way of refer report or charge sheet etc. and whether cognizance has been taken by the learned Magistrate and if so such details etc. Hence this Court had passed an order dated 08.10.2020 in this case directing the investigating officer to furnish details. Later, the investigating officer has filed a statement dated 27.10.2020 which has been produced along with memo dated 27.10.2020 of the Public Prosecutor, in which interalia it is stated that the investigation in respect of Annexure I crime No.1489/2017 of Kayamkulam police station

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Crl.MC.No.5456/2017

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has been completed and final report by way of charge sheet has been laid by the investigating agency before the Judicial First Class Magistrate Court, Kayamkulam, as against all the 4 accused in the F.I.R and whereby accused No.1 in the F.I.R/crime has been deleted and the accused 2, 3 & 4 in Annexure I F.I.R has been re-arrayed as accused 1 to 3 in the final report/charge sheet and that the petitioner is now has been arrayed as accused No.4 in the F.I.R has been arrayed as accused No.3 in the final report/charge sheet and that the learned Magistrate has taken cognizance in the case is now pending as C.C No.548/2019 on the file of the JFCM, Kayamkulam and the next hearing date of the case is 18.11.2020. However, it is not stated with clarity in such statement as to whether the learned Magistrate has framed charges in this case after taking cognizance, though there is a vague averment in the last paragraph of the said statement of the investigating officer that the case is pending trial.

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"After conducting proper investigation Sohbanvas who is arrayed as A1 in the FIR was deleted from the accused list and the accused list was re-arranged to A2 Anandabhai @ Ambili as A1, A3 Santhosh Kumar as A2 and A4 Ali as A3. Accused A3 Ali was absconding and not arrested. Charge Sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Kayamkulam on 20.03.2019. Now the

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Crl.MC.No.5456/2017

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case is pending trial before the Hon'ble Judicial First Class Magistrate Court, Kayamkulam as CC 548/2019. Next Hearing date uis on 18.11.2020.”

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Now the indisputable fact of the matter is that the petitioner has not appraised this Court about the subsequent developments in this case and has not challenged the copy of the final report/charge sheet so filed by the investigating agency in this case in Annexure I crime has also been produced along with the abovesaid statement dated 06.10.2020 filed by the investigating officer, along with all the annexures and so also a copy of the petitions/complaint given by the 2nd respondent lady de-facto complainant to the Director General of Police earlier petition which is referred to in AnnexureI F.I.R has also been separately produced along with the abovesaid statement. Now the indisputable factual aspects of the matter is that none of the parties have not appraised this Court as to the subsequent developments of the case and the petitioner has not challenge the final report/charge sheet and the pendency of the abovesaid calender case. Therefore the prayer in this Crl.M.C which is directed only as against the impugned Annexure I F.I.R has become practically redundant and superfluous, as the stage of the F.I.R has been crossed and the next stage for submission of

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Crl.MC.No.5456/2017

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the final report/charge sheet and taking of the cognizance of the case has also been over.

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The learned counsel for the petitioner would submit that liberty be accorded to the petitioner to challenge the abovesaid final report/charge sheet in the manner known to law.

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After hearing both sides this Court is of the view that

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since various nuanced factual aspects are there and the petitioner has also made certain submissions regarding the alleged divergences of the prosecution story as set up in the earlier complaint/petition filed before the Director General of Police referred to in the F.I.R as well as the subsequent case set up in the F.I.R and F.I.S, liberty is accorded to the petitioner to file discharge application before the learned Magistrate provided charges has not been framed in this case. If charges have been framed, then petitioner will be at liberty to seek other appropriate remedies to challenge the abovesaid subsequent impugned criminal proceedings. In case petitioner files discharge applications in this case without any further delay, then the learned Magistrate shall consider the said plea and

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Crl.MC.No.5456/2017

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should afford reasonable opportunity of being heard to the petitioner, the learned Public Prosecutor, the 2nd respondent de-facto complainant and then may deal with the rival contentions on merits. In that regard the petitioner's counsel would point out that the abovesaid earlier petition/complaint said to have been given by the 2nd respondent lady de-facto complainant before the Director General of Police, which is referred to in the F.I.R and is also said to be provided along with the F.I.R and the final report and that therefore the petitioner will be entitled to raise his contentions to clearly bring out the divergences in the case of the prosecution as set up in the earlier petition/complaint filed before the Director General of Police vis-a-vis the case subsequently set up in the F.I.R, F.I.S and the subsequent statements given in the course of investigation etc.

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If as a matter of fact the abovesaid petition so complaints said to have been filed by the 2nd respondent before the Director General of Police is referred to is part of the F.I.R, the learned Magistrate may examine those contentions also and if a copy of the said petition/complaint said to have been given by the 2nd respondent Director General of Police is not in the

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Crl.MC.No.5456/2017

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case records as part of the F.I.R or the final report/charge sheet, then the learned Magistrate may call for the said record from the investigating agency, as the said petition is referred to as one of the origination of the accusations of the 2nd respondent de-facto complainant as is mentioned in the F.I.R.

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If the petitioner files the said discharge application without further delay the same will be considered only if the Magistrate court had not framed charges in this case as on that day.

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Before parting with this case, it is to be observed that the investigating officer has not cared to appraise the subsequent factual developments to the prosecutor in this case and despite the order in 08.10.2020, the investigating officer had not cared to file the statement and produce the relevant documents and it is only after this Court had passed subsequent order on 23.10.2020 that he has cared to file the said statement dated 27.10.2020. In the said statement investigating officer has not even bothered to express any regret or apology in not having earlier furnished factual instructions on the subsequent factual developments in this case to the prosecutor and in not

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Crl.MC.No.5456/2017

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having complied with the directions issued by this Court on 08.10.2020 within the time limit mentioned therein.

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Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1st respondent State would submit that the investigating officer is personally present before this Court along with the entire records and that the investigating officer has submit that he would file a separate affidavit in this case expressing unconditional apology in not having earlier furnished factual instructions in this case to the prosecutor and also in not having complied with the directions issued by this Court on 08.10.2020 within the time limit mentioned in that order. Time by ten weeks is given to the investigating officer to file such affidavit.

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This Court is now disposing of the Crl. M.C. but the Registry will ensure that this case is posted on the judicial side on 09-01-2021 to ascertain as to whether the investigating officer has complied with the abovesaid undertaking made by him to file the affidavit as aforestated.

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The Registry will forward a certified copy of this order to the Judicial First Class Magistrate Court, Kayamkulam, who is

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Crl.MC.No.5456/2017

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dealing with C.C No.548/2019 for necessary information, at the cost of the petitioner.

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With these observations and directions the above Crl.M.C

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will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

Skk//02122020

Crl.MC.No.5456/2017

APPENDIX

PETITIONER'S/S EXHIBITS:

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ANNEXURE I CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1489/2017 OF THE KAYAMKULAM POLICE STATION.

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ANNEXURE II TRUE COPY OF THAT PLAINT AS O.S NO. 1/2017 FILED BY ANANDA BAI @ AGAINST THE 2ND RESPONDENT AND ONE SANTHOSH.

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ANNEXURE III TRUE COPY OF THE AGREEMENT DATED 24.1.2017 EXECUTED BETWEEN ANANDA BAI @ AMBILI AND THE 2ND RESPONDENT.

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ANNEXURE IV TRUE COPY OF THE COMMON ORDER IN CRL.M.P 3691/2017 AND CRL.M.P 3889/2017 OF THE SESSIONS COURT, ALAPPUZHA.

Santhosh Kumar.R v. State of Kerala

Case brief

What is this about?

What did the court decide?

Santhosh Kumar.R v. State of Kerala

Case brief

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What did the court decide?

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