IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 433 of 2004()
1. D.W.SATHEESH,
... Petitioner
Vs
1. DR.Y.RAJA RETNAM, S/O. YOHANNAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :06/06/2008
O R D E R
M.C.HARI RANI,J.
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CRL.M.C.No.433 OF 2004
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DATED THIS THE 6th DAY OF JUNE, 2008
O R D E R
This petition is filed under Section 482 of the Code of
Criminal Procedure by the petitioner with a prayer to quash
Annexure-D FIR lodged by the Sub Inspector of Police, Parassala
Police Station before the Judicial First Class Magistrate’s Court-II,
Neyyattinkara and all further proceedings taken pursuant thereto
as against the petitioner who was the second accused therein.
2. The petitioner has relied on Annexures A to D in
support of the allegations made against the respondents,
particularly against the first respondent in this petition. Annexure
A produced by the petitioner herein is the true copy of the
complaint filed by him as the complainant before the Judicial First
Class Magistrate’s Court-II, Kuzhithurai (Tamil Nadu) filed under
Section 138 of the Negotiable Instruments Act and Section 200
Cr.P.C. which is pending before that court as C.C.No.241/03.
Annexure B is the true copy of the complaint filed by the
petitioner herein before the Superintendent of Police (Rural),
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Thiruvananthapuram District against the first respondent herein for
the alleged threat made by the counter petitioner and his men against
the petitioner with the prayer to take action against them and to save
the life of the petitioner herein. Annexure C is the true copy of the
complaint filed by the first respondent in this petition against his
daughter and the petitioner herein before the Judicial First Class
Magistrate’s Court-II, Neyyattinkara under Section 190(2) and 200 of
the Code of Criminal Procedure with a prayer to accept the complaint
and to refer the same to S.H.O., Parassala Police Station under
Section 156(3) of Cr.P.C. and to proceed accordingly. Annexure D is
the photocopy of the FIR lodged before the Judicial First Class
Magistrate’s Court-II, Neyyattinkara filed by the Sub Inspector of
Police, Parassala Police Station against the petitioner herein and
another for the offences under sections 379, 465, 468 and 471 read
with Section 34 of Indian Penal Code. The prayer in this petition is to
quash further proceedings and the investigation of the criminal case
lodged against the petitioner who was arrayed as 2nd accused in that
FIR which is pending investigation before the concerned police
station.
3. Heard the learned counsel appearing for the petitioner and
CRL.M.C.No.433 OF 2004 -3-
the first accused and also the learned Public Prosecutor appearing for
the 2nd respondent in this petition. It is argued by the learned
counsel appearing for the petitioner that the present complaint has
been filed by the first respondent herein after receipt of the notice in
the case proceeded against him under Section 138 of Negotiable
Instruments Act with the idea to take it as a defence in the
proceedings pending as C.C.No.241/03 before the Judicial First Class
Magistrate’s Court-II, Kuzhithurai. Subsequently, the first respondent
has filed a complaint before the Judicial First Class Magistrate’s Court-
II, Neyyattinkara alleging offences punishable under sections 379,
465, 468 and 471 read with Section 34 of Indian Penal Code against
his own daughter Anitha and the petitioner herein arrayed as accused
1 and 2 respectively. That complaint was forwarded by the learned
Magistrate under Section 156(3) of the Code of Criminal Procedure
and the FIR was lodged, marked as Annexure D. According to the
learned counsel for the petitioner, the first respondent in this petition
got the FIR registered against the petitioner herein without any bona
fide to create a defence in the case pending against him for the
offence under Section 138 of Negotiable Instruments Act before the
Judicial First Class Magistrate’s Court-II, Kuzhithura. Thus, according
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to the learned counsel appearing for the petitioner, continuance of the
proceedings in Annexure D as against the petitioner is an abuse of
process of law which is liable to be quashed under Section 482 Cr.P.C.
It is submitted by the learned counsel appearing for the first
respondent herein that the prayer in this petition filed under Section
482 of Cr.P.C. will not come under the parameters of that section and
there is no abuse of process of law by proceeding investigation of the
FIR, Annexure D by the police authorities. In order to substantiate
that stand, the learned counsel for the first accused has relied on the
decision reported in State of Haryana v. v.Bhajanlal (AIR 1992
SC 604 ). The relevant portion reads as follows:
“62. The sum and substance of the above
deliberation results to a conclusion that the
investigation of an offence is the field exclusively
reserved for the police officers whose powers in that
field are unfettered so long as the power to
investigate into the cognizable offences legitimately
exercised in strict compliance with the provisions
falling under Chapter XII of the Code and the Courts
are not justified in obliterating the track of
investigation when the investigating agencies are
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well within their legal bounds as aforementioned.
Indeed, a noticeable feature of the scheme under
Chapter XIV of the Code is that a Magistrate is kept
in the picture at all stages of the police investigation
but he is not authorised to interfere with the actual
investigation or to direct the police how that
investigation is to be conducted. But if a police
officer transgresses the circumscribed limits and
improperly and illegally exercises his investigatory
powers in breach of any statutory provisions causing
serious prejudice to the personal liberty and also
property of a citizen, then the Court on being
approached by the person aggrieved for the redress
of any grievance has to consider the nature and
extent of the breach and pass appropriate orders as
may be called for without leaving the citizens to the
mercy of police echelons, since human dignity is a
dear value of our Constitution. Needs no emphasis
that no one can demand absolute immunity even if
he is wrong and claim unquestionable right and
unlimited power exercisable upto unfathamable
cosmos. Any recognition of such power will be
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tantamount to recognition of ‘Divine Power’ which
no authority on earth can enjoy.”
Considering the facts and circumstances of this case as also in the
light of the above said decision, I find that while considering a petition
filed under Section 482 of Cr.P.C., the documents relied on by the
parties in the proceedings against them cannot be looked into and
powers of investigation of the police authorities in respect of a
cognizable offence cannot be curtailed. The disputed facts raised by
both parties are yet to be investigated by the concerned police
authorities and to be decided by the Magistrate who are empowered
as per law to proceed as per the relevant provisions of Cr.P.C. There
is nothing inherently improbable to proceed against the FIR pending
investigation against the petitioner on the basis of the complaint filed
by the first respondent herein. Therefore, I find that there is no merit
in this petition and it is dismissed as devoid of any merit.
M.C.HARI RANI, JUDGE.
dsn