Dismissed

K.C.Sunny v. the State of Kerala

Kerala HC9 Dec 2021Crl.MC/6653/2019

Case brief

AI extract

What is this about?

In Crl.M.C. No. 6653/2019, the Kerala High Court dismissed the application seeking to quash criminal proceedings against the petitioner (2nd accused) for defamation under Section 500 IPC. The court held that the allegations required examination of evidence during trial, making it an unfit case for quashing under Section 482 Cr.P.C.

What did the court decide?

The Criminal Miscellaneous Case was dismissed finding no merit.

K.C.Sunny Vs the State of Kerala — Civil Procedure and Limitation | Kerala HC (2021)

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Crl.M.C.No.6653/2019

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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 ZIYAD RAHMAN A.A.

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THURSDAY, THE 9^TH DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943

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CRL.MC NO. 6653 OF 2019

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AGAINST THE ORDER/JUDGMENT IN CC 76/2015 OF JUDICIAL MAGISTRATE

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OF FIRST CLASS -II, THAMARASSERY

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PETITIONER/ACCUSED NO.2:

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K.C.SUNNY, AGED 58 YEARS, S/O.CHACO, KOOVAPPARA VEEDU, THIRUVAMBADY P.O., KOZHIKODE DISTRICT.

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BY ADVS. A.T.ANILKUMAR V.SHYLAJA

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RESPONDENT/COMPLAINANT:

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

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2 GEORGE KOOVAPPARA, AGED 57 YEARS S/O.CHACKO, KOOVAPPARA VEEDU, THIRUVAMBADY, KOZHIKODE, PIN-688 002.

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BY ADV SRI.LUIZ GODWIN D COUTH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

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09.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.M.C.No.6653/2019

O R D E R

The petitioner is the 2^nd accused in C.C.No.76/2015 on the file of the Judicial First Class Magistrate Court-II, Thamarassery. Offences alleged against the petitioner was under Section 500 IPC.

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The facts of the case leading to this Crl.M.C. is as follows: Petitioner herein is the brother of the 2^nd respondent/de facto complainant. The sister-in-law of the de facto complainant Smt.Leelamma filed a complaint against the 2^nd respondent herein alleging offences under Sections 420, 461, 464 and 465 of Indian Penal Code. On the basis of the same, Crime No.155/2009 was registered against the petitioner and investigation was conducted by the police. Thereafter, a final report was filed by the police referring the case as false. The said Leelamma, sister in law of the de facto complainant submitted a protest complaint against the said final report and further investigation was directed thereon. Thereafter also, a refer report was filed by the police.

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Crl.M.C.No.6653/2019

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Thereafter, the 2^nd respondent filed Annexure-A complaint before the Judicial First Class Magistrate Court-II, Thamarassery alleging offences against the said Leelamma and petitioner herein as accused Nos.1 and 2 respectively, for the offence punishable under Section 500 IPC. The allegation made against the accused persons was that, they have propagated false statements in the locality that the 2^nd respondent tried to grab the property belonging to the said Leelamma by using forged document. He also referred to the false complaint submitted against the 2^nd respondent for the offences which culminated in refer report. The learned Magistrate took cognizance of the offence as C.C.No.76 of 2015, which is now pending trial.

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The 1^st accused therein filed Crl.M.C.No.3588 of 2015 before this Court for quashing the aforesaid proceedings against her. After considering the materials available on record, this Court arrived at a conclusion that proceedings against the 1^st accused therein is not legally sustainable as no materials are

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Crl.M.C.No.6653/2019 4

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available against her to attract the offence under Section 500 IPC. Accordingly, the proceedings against her was quashed. In this Crl.M.C. the petitioner/2^nd accused is seeking to quash the aforesaid proceedings as against him as well.

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Heard Smt.V.Shylaja, learned counsel for the

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petitioner and Sri.Luiz Godwin D. Couth, learned counsel for the 2^nd respondent.

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The learned counsel for the petitioner contends that, even if the entire allegations contained in Annexure-A are taken for its face value, no offence punishable under Section 500 IPC read with Section 499 IPC are made out. It is pointed out that, the basic allegation is with respect to the submission of complaint by the 1^st accused, which resulted in a refer report. It is pointed out that according to the 2^nd respondent, aforesaid allegations in the complaint are false and were made with the intention to defame the 2^nd respondent herein. It is the case of the learned counsel for the petitioner that, the aforesaid allegation falls under 5^th exception of Section 499 IPC. Therefore,

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Crl.M.C.No.6653/2019

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the aforesaid offence is not attracted. It was also contended that, even in the statements recorded during the course of enquiry under Section 202 Cr.P.C, none of the witnesses have stated about the involvement of the petitioner. All the statements were hearsay evidence and therefore, the same cannot be relied to proceed against the complaint.

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On the other hand, the learned counsel for the respondent would seriously oppose the same and seek for dismissal of the Crl.M.C.

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The only question that arises is as to whether this is a fit case to exercise the inherent jurisdiction of this Court under Section 482 Cr.P.C. It is true that the proceedings against the 1^st accused has already been quashed by this Court as per Annexure-B order. However, a perusal of the said order would reveal that the reason for quashing the aforesaid proceedings against the 1^st accused was that, the statements of the witnesses did not disclose the role of the petitioner therein. Therefore, the reasons which prompted this Court to quash the proceedings

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Crl.M.C.No.6653/2019

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against the 1^st accused cannot be treated as a reason for quashing the proceedings against the petitioner herein.

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On the other hand, going through the contents of Annexure-A, it can be seen that the 2^nd respondent has made specific allegations as against the petitioner herein to the effect that he had propagated about the attempts alleged to have been made by the petitioner to grab the property of the 1^st accused through forged documents. Apart from the above, he has also reiterated the same while his statement was recorded, as a part of inquiry under Section 202 Cr.P.C. Apart from the 2^nd respondent, two other witnesses were also examined. Out of two, CW2 has specifically referred to the statement made by the petitioner herein with regard to the aforesaid false propaganda. In such circumstances, this is a case in which, the veracity of the allegations are to be examined, which can be done only upon examining the evidence to be adduced during the course of trial. The contention regarding the 5^th exception under Section 499 IPC, is also a matter to be adjudicated based on the evidence

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Crl.M.C.No.6653/2019

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only. What is relevant in proceedings under Section 482 Cr.P.C is as to whether the materials such as complaint and statements of the witnesses prima facie constitute an offence. In the facts and circumstances of the case, I am of the view that this is not a fit case in which the said jurisdiction can be exercised. Accordingly, I find no merit in this Crl.M.C and the same is dismissed.

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The learned counsel for the petitioner submits that he may be granted exemption under Section 205 Cr.P.C, from appearing before the court below. It is ordered that, any such application is submitted by the petitioner, the same shall be considered by the learned Magistrate, and appropriate orders thereon shall be passed, by taking into account the fact that, since this being a case where the identity of the petitioner is not in dispute, presence of the accused may not be necessary on all occasions.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

DG/9.12.21

Crl.M.C.No.6653/2019

APPENDIX OF CRL.MC 6653/2019

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PETITIONER ANNEXURE

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ANNEXURE A THE TRUE COPY OF THE PETITION FILED BY 2ND RESPONDENT UNDER SECTION 190(1) (A) CRPC. ANNEXURE B THE TRUE COPY OF THE ORDER IN CRL.MC 3588/2015 HONOURABLE HIGH COURT DATED 05.07.2019.

K.C.Sunny v. the State of Kerala

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K.C.Sunny v. the State of Kerala

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