IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 516 of 2005()
1. DR.SURESH BABU, S/O.K.VELAYUDHAN,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. SULBA BEEVI, D/O.THAHIRA BEEVI,
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :SRI.M.SREEKUMAR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :18/07/2008
O R D E R
V.K.MOHANAN, J.
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Crl.M.C.No. 516 of 2005
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Dated this the 18th day of July, 2008
O R D E R
The sole accused in C.C.No.421 of 2004 on the
file of the Judicial First Class Magistrate Court,
Nedumangad seeks an order from this Court under
Section 482 of the Code of Criminal Procedure quashing
Annexure A5 complaint pending before the J.F.C.M.Court,
Nedumangad. C.C.No.421 of 2004 is instituted in the
court below taking cognizance upon Annexure A5 protest
complaint filed by the second respondent herein.
2. The case of the petitioner can be summarised as
follows:-
The petitioner was attacked on 28.4.2004 at about
6.30 p.m. by the husband of the second respondent herein
and on the basis of the information furnished by the
petitioner, Crime No.107 of 2004 was registered in the
Palode Police Station against the husband of the second
respondent and certain other persons for the offences
punishable under Sections 452,294(b),323,332,427 and 34
I.P.C. Thereafter, to counter blast the above criminal
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case, after about one and a half month, the second
respondent herein filed a complaint straight away before
the Judicial First Class Magistrate Court, Nedumangad
with the allegation that the petitioner had committed an
offence under Section 354 I.P.C. against her on
26.4.2004. The said complaint was sent to Palode Police
Station under Section 156(3) of Criminal Procedure
Code for investigation. On receiving the complaint,
Crime No.125 of 2004 was registered in the Palode
Police Station and they undertook the investigation and
through their investigation, it is revealed that the
allegation is false and they have accordingly filed a refer
report, a copy of which is filed along with this Crl.M.C.
as Annexure A4. Aggrieved by Annexure A4 report, in
spite of various petitions and representation filed before
the various authorities, the second respondent herein
preferred the present protest complaint viz., Annexure
A5 in which the allegation is that at about 3 p.m., on
26.4.2004, the petitioner herein had committed the
offence under Section 354 I.P.C. when the complainant
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approached him with the complaint of diarrhea and
stomach pain, when she was attending her mother in law
who was admitted in the hospital where the petitioner is
working. The court below took cognizance upon the
above complaint and instituted the above case. It is the
above case and the complaint, are sought to be quashed
in these proceedings.
3. I have heard the learned counsel for the
petitioner and respondents and also the Public
Prosecutor for the first respondent.
4. Reiterating the contention raised in the
Crl.M.C., the counsel for the petitioner submits that
Annexure A5 complaint is filed with mala fide intention
and to simply harass the petitioner who is a Doctor by
profession and in lodging Annexure A5 complaint, his
professional enemies are behind it. It is also pointed out
by counsel for the petitioner that on the basis of receipt
of the complaint from the court under Section 156(3) of
the Code of Criminal Procedure, after registering a
crime, the Police had already conducted a very detailed
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investigation and they have questioned several
witnesses and examined various documents and finally,
they found that the allegations raised against the
petitioner are absolutely false and baseless and they
intimated their conclusion by filing Annexure A4 refer
report to the court below. Learned counsel further
submits that considering the entire facts and
circumstances involved in the case, the only conclusion
that can be arrived is that Annexure A5 protest
complaint is filed with a mala fide intention. In support
of the above contention, he further submits that there is
long delay in filing the complaint before the court below
even during the initial time. The delay was not properly
explained. According to the counsel for the petitioner,
even on comparison regarding the date of occurrence in
the above two incidents, it can be seen that actually the
petitioner was attacked on 28.4.2004 and the Police
registered a crime and investigation was conducted and
proper charge was laid. If the occurrence alleged in the
protest complaint is true, there is no explanation as to
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why the complainant failed to approach the Police in
time and even if the Police has not taken appropriate
action at her request, it was also open to her to
approach the higher superior officers of the Palode
Police Station authorities. According to counsel for the
petitioner, there is no explanation for the above lapse on
the part of the complainant. The learned counsel for the
petitioner also invited my attention to certain
contradictions and omissions that contained in the
statement recorded by the Police during their
investigation in Crime No.125 of 2004 which was
registered at the instance of the complainant. This
Court is not in a position to enter into any finding or
appreciating those contradictions and omissions
because, as on today, those documents are not part of
the prosecution or complainant’s record. Certainly, if
the petitioner is so advised, the same can be considered
at the time of trial, if the law permits.
5. Counsel for the petitioner very much argued
regarding the delay occurred in filing the complaint
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initially before the court below. It is the case of the
complainant which can be seen from Annexure A5
complaint that the approach adopted by the Police was
against the complainant and to help the petitioner and
therefore, she approached various other authorities in
the mean while. It is true that if the date of alleged
incident has taken as a true date, there is delay of more
than 40 days. The explanation offered by the
complainant was to be appreciated during the trial of
the case and it is for the trial court to come into a
correct conclusion on merits regarding those
contentions. It is not proper for this court to enter into
the finding on that issue.
6. I have perused Annexure A5 complaint and I
am deliberately abstaining from making any observation
or finding regarding the merits of the allegations
contained in the complaint. If the petitioner is of
opinion that the protest complaint is made to harass the
petitioner and with mala fide intention, he can raise
those contentions before the court below at appropriate
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stage and he can also rely upon the materials which are
produced at that time or after taking steps for producing
such materials. But, on a consideration of Annexure A5
protest complaint and other materials on record, I find
no ground to interfere with Annexure A5 complaint.
7. In the light of the above discussion and
materials available on record, no interference is
warranted under Section 482 of the Code of Criminal
Procedure. All the contentions raised by the petitioner
in this petition can be raised before the court below at
appropriate time. It is open for the petitioner to avail
such opportunity even without any observation or any
direction.
With the above observation, the Crl.M.C. is
dismissed.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, J.
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Crl.R.P.NO. OF 200
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O R D E R
DATED: -6-2008
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