The prayer in this Crl.M.C is to quash all further proceedings in Annexure A final report pending as C.C No.1963 of 2012 on the file of the Judicial First Class Magistrate Court - II, Thiruvananthapuram, to the extent the petitioner is arrayed as accused therein. Petitioner is the 5th accused in the aforementioned case and final report has been filed and the court below has taken cognizance of the offences punishable under Sections 120B, 341, 506(i), 509 and 354 r/w Section 34 of Indian Penal Code. 2. The allegation in the final report is that due to enmity that CW1 assisted the Deputy Commissioner of Police, who conducted enquiry upon the complaint submitted by CW2 as against A1 to A6 before the Director General of Police, the accused persons took the photograph of CW1 and CW2, with an intention to defame and criminally intimidate CW1. It is alleged that in between 01.05.2010 to 05.05.2010, A1 to A6 criminally conspired as a result of which on 03.05.2010 at 6:30 a.m two indentifiable persons criminally intimidated her and on 04.05.2010 telephoned her and intimidated her and that on 05.05.2010, A1 to A6 entrusted CW3 and CW4 to take the photograph of car of CW2 parked near the house of CW1, which did not worked out. Later A2 directly went and asked A7 to check up whether the car of CW2 is parked near the house of CW1 and entrusted A7 to threaten CW1. Accordingly, A7 along with A8, after restraining CW1, criminally intimidated her.
3. The 2nd respondent herein (CW1) is a Women Police Constable and A1 and A4 are Police Constables and petitioner, who is the accused No.1, is a driver not attached to the police force but working in the Government Service. It is stated, according to the petitioner, the said matter of the alleged dispute narrated in the impugned Annexure A final report with regard to the fight between two groups of police officers in which petitioner and some others have been dragged in, in the background of the facts and circumstances that the petitioner has chosen to file this Crl.M.C. Some of the main contentions urged by the petitioners are in grounds (i) and (ii) stated in this memorandum of Crl.M.C which reads as follows:
“i) The allegation as against the petitioner in the final report is that he along with A1 to A4 criminally conspired in between 01.05.2010 to 05.05.2010. The allegation of criminal conspiracy should not only be alleged but should be proved. In order to prove the allegation of conspiracy, the Investigating Officer has relied upon the confession statement alleged to be given by this accused before him. As per Section 25 of Indian Evidence Act, 1872, no confession made to a police officer, shall be proved as against a person accused of any offence. The said confession statement is not at all acceptable in evidence and thereby it is not reliable. Therefore, ultimately the offence of Criminal Conspiracy will not stand and thereby the petitioner may not be unnecessarily dragged and harassed to face the vexatious prosecution. In Devendra and others V state of Uttar Pradesh and another 2009 KHC 656, it was held that “When the allegations made in the first information report or the evidence collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a Criminal Court for nothing.”
ii) The allegation in the final report contains the offence under Section 354 of IPC, for which there is no sufficient ingredient to attract. In Sasidharan V State of Kerala, 2005(3) KLT 185, it was held by this Honourable Court that “in order to constitute an offence under section 354, there must be an assault or use of criminal force to any woman with the intention that the woman's modesty will be outraged. The allegation will not show that there was any criminal force used with an intention to outrage the modesty.” The allegation that CW1 was intimidated or threatened that her photograph will be published with the photo of CW2, is not sufficient enough to attract an offence under Section 354 of IPC. Hence it is unfair and unjustifiable to try the accused persons or prosecute them for the said offence. The learned Magistrate ought not to have taken cognizance for the offence under Section 354 of IPC, but the learned magistrate without applying the mind, has callously taken cognizance for the said offence.”
4. Sri. Shajin S.Hameed, learned counsel for the petitioner would strongly urge that in view of the dictum laid down by the apex court in Ravinder Singh V. Sukhbir Singh and others (2013(1) KLD 627), it has been held that:
“A person cannot be permitted to unleash vendetta to harass any person needlessly. It is the paramount duty of the court to protect an innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint.”
He has also urged that in view of the decision of the apex court in Shakson Belthissor V. State of Kerala and another (2009(14) SCC 466) it has been held that:
“Power to quash FIR/charge sheet-Held, power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive.”
5. The learned counsel for the petitioner would also urge that in view of the legal principles laid down by the apex court in State of Haryana & others V. Ch.Bhajan Lal & others (AIR 1992 SC 604), it appears that Section 482 of the Code of Criminal Procedure can be invoked to prevent the abuse of process of court and to secure the ends of justice.
6. Heard the learned counsel for the petitioner and also the learned Public Prosecutor.
7. Having considered the submissions made by the learned counsel for the petitioner and the learned Public Prosecutor, this Court is of the view that inherent powers of this Court conferred under Section 482 of the Code of Criminal Procedure need not be invoked in the present case at this stage. The court below dealing with the discharge petition is better equipped to adjudicate the issues in this case instead of this court straight away interfering by resort to powers under Section 482 of the Code of Criminal Procedure. The remedy to seek discharge in appropriate application can be made before the court below, if the time for making such request has not been closed.
8. The learned counsel for the petitioner would submit that though the final report/charge sheet has been placed before the court below, the said court has not so far framed charge in this case. Therefore, it is open to the petitioner to institute an appropriate application seeking discharge of this case.
In the event of such an application made, the same shall be duly considered by the court below after affording reasonable opportunity to the petitioner and the Public Prosecutor concerned in case the stage for seeking discharge is not over in this case.
With the above observations, this Crl.M.C stands disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE.
vdv //True Copy// P.A to Judge