Allowed

Georgekutty Xavier v. State of Kerala

Kerala HC2 Jun 2023Crl.MC/1757/2023

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings against the petitioner for an offence under the Abkari Act. The Court held that the Final Report was submitted maliciously to protect officials who falsely implicated the petitioner, ignoring a Vigilance Report that cleared him.

What did the court decide?

The petition was allowed; the Final Report in C.R. No. 22/2020 and all subsequent proceedings against the petitioner were quashed.

Georgekutty Xavier Vs State of Kerala — Cheque Dishonour | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV

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FRIDAY,THE2NDDAYOFJUNE2023/12THJYAISHTA,1945
CRL.MCNO.1757OF2023

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INCC76/2021OFJUDICIALMAGISTRATEOFFIRSTCLASS,VAIKOM
PETITIONER/ACCUSED:

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GEORGEKUTTYXAVIER
AGED53YEARS
S/O.N.C.XAVIER,NELLITHANATHKALAYILHOUSE,
KOTHANALLUR,KURUMULLOOR(P.O),VAIKOM,KOTTAYAM
DISTRICT,PIN-686632.

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BYADVNIREESHMATHEW

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RESPONDENT/COMPLAINANT:

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STATEOFKERALA
REPRESENTEDBYPUBLICPROSECUTOR,
HIGHCOURTOFKERALA,PIN-682031.

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SRI.MPPRASHANTH,PP

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THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON
02.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING:

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Crl.M.C No. 1757 of 2023

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ORDER

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The petitioner herein is the accused in C.C.No.76/2021 on the file of the Judicial First Class Magistrate Court, Vaikom. In the aforesaid case, he faces the accusation of having committed offence punishable under Section 64A of the Abkari Act. The petitioner has approached this Court seeking to quash the proceedings on the ground that the accusations against the petitioner are frivolous and vexatious and the final report has been laid solely to vex him.

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Short facts which led to the final report are narrated as under:-

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Annexure-3 final report would reveal that prior information was received at the Excise Range Office, Kuruvilangad, that the petitioner herein has concealed illicit arrack in the premises attached to his residence. Based on the said information, the Excise Inspector, Excise Range Office, Kuruvilangad, along with his party, conducted a search in the house of the petitioner on 24.02.2020 at about 12.30 p.m. It is alleged that 2.450 litres of arrack were found concealed in a shed situated on the southeastern side of the petitioner’s residence. The material objects were seized, and crime No.22/2020 of Excise Range, Kaduthuruty, was registered as the offence was detected within the jurisdictional limits of the said Excise Range.

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It appears that the petitioner herein, complaining of false

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implication, submitted a detailed complaint before the Excise Commissioner on

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Crl.M.C No. 1757 of 2023

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28.03.2020. In the complaint, he stated that he was implicated in a false case

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due to prior enmity and he was totally innocent. He requested that a detailed inquiry be conducted to bring out the actual facts.

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An investigation was ordered by the Excise Commissioner on the complaint filed by the petitioner. The Vigilance Officer, Excise, conducted an enquiry and submitted a report on 26.6.2020 wherein after exhaustedly considering the entire facts and after questioning the witnesses involved, the Officer came to the conclusion that it is a case of false implication. A report was submitted that the officers responsible for falsely implicating the petitioner were liable to be proceeded against.

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The petitioner asserts that in spite of such a report against the excise officers who falsely implicated the petitioner herein, the investigating officer ignoring the finding of the Vigilance Officer, submitted a final report incorporating Section 64A of the Abkari Act. The allegation is that the petitioner herein had allowed the land in his possession for storing illicit arrack.

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It is for quashing the above report that the petitioner has approached this Court with this petition.

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I have heard Sri.Nireesh Mathew, the learned counsel appearing for the petitioner and the learned Public Prosecutor.

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It is submitted by the learned counsel appearing for the petitioner

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Crl.M.C No. 1757 of 2023 4

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that the continuance of the proceedings against the petitioner is a clear abuse of process. He took this Court through Annexure 2 report, and it is submitted that the recommendation of the Vigilance Officer was for initiation of criminal proceedings against the persons who are responsible for false detection and the implication of the petitioner herein. He would also refer to the final report and point out that in order to give a clean chit to the detecting officer, a false report was submitted incorporating Section 64A of the Abkari Act, without even any semblance of evidence against him. After having found that the petitioner is totally innocent and he was falsely implicated, there was no justification for submitting a false report, contents the learned counsel.

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The learned Public Prosecutor fairly submitted that it is a fit case in which this Court will be justified in quashing the proceedings. It is also submitted, as far as the false implication of the petitioner herein is concerned, he wants further time to obtain the present status of the proceedings against the Preventive Officer as well as the Excise Inspector.

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After careful consideration of the arguments presented and a thorough examination of the case records, it is evident that the petitioner has been subjected to a grave instance of false implication. This situation is truly alarming. The petitioner, a person of high regard, was unjustly arrested on charges of concealing illicit arrack within his premises. He was incarcerated for

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Crl.M.C No. 1757 of 2023

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some time as well. The petitioner lodged a complaint before the Commissioner, who instructed the vigilance officer to conduct a detailed investigation. Upon completion of the enquiry, the officer's report concluded that the petitioner had indeed been falsely implicated. Furthermore, it recommended initiating a departmental inquiry against the Excise Range Inspector of Kaduthuruthy and the Preventive Officer of Kuruvilangadu Police Station. In addition, it was advised that a crime should be registered against the informant under Section 195 of the Code. Subsequently, ignoring the vigilance report, the final report was laid, incorporating Section 64A of the Abkari Act. It is evident that such a report was submitted to provide relief to the officers who falsely implicated the petitioner in the crime and to diminish the gravity of their actions. There is absolutely no basis to hold the petitioner accountable for allowing his property to store contraband, as no evidence supporting such claims was collected. On the contrary, the report clearly states that the officers registered the crime at the behest of an individual who harbors hostility towards the petitioner. This highlights the extent of the petitioner's false implication and the seriousness of the matter at hand.

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The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offenses to prevent abuse of process of any

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Crl.M.C No. 1757 of 2023

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court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal¹ . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under:

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102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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1 [1992 Supp (1) SCC 335

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Crl.M.C No. 1757 of 2023

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

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Crl.M.C No. 1757 of 2023

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Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in Bhajan Lal (supra), I am of the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under section 482 of the Code to quash the criminal proceedings against the petitioner.

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This petition will stand allowed. Annexure 3 report in CR No. 22/2020 of the Excise Range Office, Kaduthuruthi, and all further proceedings pursuant thereto against the petitioner will stand quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

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Sru

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Crl.M.C No. 1757 of 2023

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APPENDIX OF CRL.MC 1757/2023

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PETITIONER’SANNEXURES

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Annexure1TRUEPHOTOCOPYOFTHECRIMEANDOCCURRENCE
REPORTDATED24.02.2020INC.R22/2020OF
EXCISERANGEOFFICE,KADUTHURUTHY.
Annexure2TRUECOPYOFTHEENQUIRYREPORTDATED
26.06.2020FILEDBYTHEEXCISEVIGILANCE
OFFICER,THIRUVANANTHAPURAM.
Annexure3CERTIFIEDCOPYOFTHEFINALREPORTDATED
19.01.2021INC.R22/2020OFEXCISERANGE
OFFICE,KADUTHURUTHY.

Georgekutty Xavier v. State of Kerala

Case brief

What is this about?

What did the court decide?

Georgekutty Xavier v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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