IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
Crl.MC.No.4301 OF 2020(G)
SC 321/2020 OF SESSIONS COURT, KANNUR
CRIME NO.873/2019 OF Kannur Town , Kannur
PETITIONER/S:
M. GOVINDAN KUTTY,
AGED 61 YEARS
S/O. P.V. GOVINDA NAIR, MANJERI VEEDU, C-5,
KENDRIYA VIDYALAYA QUARTERS, DHARMASALA,
UNIVERSITY CAMPUS P.O., KANNUR-I.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT/S:
1 THE DEPUTY SUPERINTENDENT OF POLICE,
KANNUR-670001.
2 THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682031.
3 VILASINI AARAMBHAN,
AGED 60 YEARS, AARAMBHAN HOUSE, NEAR AKG ROAD,
KATTAMPALLY P.O., PUZHATHI, CHIRAKKAL, KANNUR-
670011.
R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
ADGP SURESH BABU THOMAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
17.11.2020, THE COURT ON 07.01.2021, PASSED THE FOLLOWING:
Crl.M.C.No.4301 of 2020
2
ORDER
Dated this the 7th day of January, 2021 Petitioner is the first accused in SC No.321 of 2020 of the Sessions Court, Kannur. The case originated at the third respondent's instance, whereby Crime No.873 of 2019 was registered at the Kannur Town Police Station. The third respondent had alleged that the petitioner had engaged her for domestic chores and there was sexual relationship between them for a long time. During the subsistence of that relationship, the petitioner, a practising lawyer, had deceptively obtained the original title deeds of the third respondent's landed property and had caused her to sign some papers, by making her believe that the documents were to be submitted in court for Crl.M.C.No.4301 of 2020 3 securing bail to one of his clients. Though the third respondent made repeated requests, the title deeds were not returned. Later, the third respondent came to know that her property had been sold by the accused, on the strength of a forged power of attorney. She alleged that the accused had cheated her by procuring the title deed of her property deceptively and selling the property by forging her power of attorney. According to the third respondent, the accused had cheated her, knowing fully well that she was an illiterate daily waged labourer belonging to the Scheduled Caste. On completion of investigation, final report was laid and cognisance taken by the court for offences under Sections 406, 420, 468 read with 34 of IPC and Section 3(1)(f) & (g) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2016 ('the Amendment Crl.M.C.No.4301 of 2020 4 Act of 2016' for short). This Crl.M.C. is filed seeking to quash the final report and further proceedings in the Sessions Case.
2. Heard Sri. T.G.Rajendran, learned Counsel for the petitioner and Sri. Suresh Babu Thomas, learned Additional Director General of Prosecution.
3. Learned Counsel for the petitioner assailed the final report, contending that, prosecution for the offences under Section 3(1)(f)&(g) is illegal, inasmuch as those sections were introduced by the Amendment Act of 2016 and the alleged crime was committed before the amendment. The subtle difference between Sections 3(iv), 3(v) of the pre-amended Act, which according to the learned Counsel are the offences in pari materia with Section 3(1)(f) of the Amended Act, is pointed out to contend that the investigating officer has Crl.M.C.No.4301 of 2020 5 deliberately incorporated Section 3(1)(f), on finding the allegations insufficient to constitute the offences under Section 3(iv) or (v). It was contended that, going by Section 14 of the Act, the designated Special Court is not empowered to take cognisance and try offences under other enactments and hence, the petitioner cannot be prosecuted for offences under the Indian Penal Code. It was argued that offences under Sections 406, 420 and 468 of IPC are not included in the Schedule to the Act, nor are those offences punishable with imprisonment for ten years or more, in which event alone the Special Court gets jurisdiction. The transferor being the second accused and the transferee a third person, there is no ground for implicating the petitioner as an accused, was the final contention.
4. The learned ADGP, countered the contentions Crl.M.C.No.4301 of 2020 6 and argued that, even if the petitioner cannot be prosecuted for the offence under Section 3(1)(f) of the Amendment Act, the court can proceed against him for offences under Sections 3 (1)(iv) and 3(2)(v) of the pre-amended Act. It is contended that by interfering with enjoyment of her immovable property by the third respondent, the petitioner has committed the offence under Section 3(1)iv). According to the learned ADGP, by forging the petitioner's power of attorney, petitioner has committed the offence under section 467 IPC, which is punishable with imprisonment for ten years and will therefore fall under Section 3(2)(v). It is contended that misquoting of penal provisions in the final report is not a ground for quashing the proceedings.
5. Going by the allegations in the final report, the incident had occurred much prior to Crl.M.C.No.4301 of 2020 7 26.01.2016, the date on which the Amendment Act 1 of 2016 had come into effect. As rightly contended by the learned Counsel for the petitioner, Section 3(1)(f) and (g) were introduced by Amendment Act 1 of 2016. As such, the petitioner cannot be prosecuted for those offences.
6. The next question is whether the illegal acts committed by the petitioner would be an offence under the pre-amended Act. In order to consider this question, it is necessary to have a closer look at Section 3(1)(v) extracted hereunder:
"3. Punishments for offences of
atrocities.- (1) x x
x x
(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water."
Going by the provision, wrongful dispossession of a member of a Scheduled Caste or Scheduled Tribe Crl.M.C.No.4301 of 2020 8 from his land or interference with the enjoyment of his rights over any land is a punishable offence. In the instant case, the specific allegation is that the petitioner had sold the third respondent's property on the strength of a forged power of attorney. This would necessarily entail in denial of the third respondents right of enjoyment over her land. That being the case, there is substantial force in the contention of the learned ADGP that, even if Section 3(1)(f) and
(g) are not attracted, the petitioner is liable to be prosecuted for the offence under Section 3(1)
(v).
7. The learned ADGP had also contended that, fabrication of a power of attorney by forging the signature of the third respondent amounted to an offence under Section 467 IPC, punishable with imprisonment for life, which falls under Section Crl.M.C.No.4301 of 2020 9 3(2)(v) of the Act. Going by the definition of 'valuable security' under Section 30 of IPC and the wording of Section 467, this contention cannot be brushed aside. Needless to say that, under Section 216 Cr.P.C, the trial court is conferred with the power to alter or add any charge at any time before the judgment is pronounced. Therefore, for reason of a wrong provision being incorporated in the final report, this Court cannot be called upon to quash the proceedings, even before framing of charge by the jurisdictional court.
In the result, the Crl.M.C is dismissed.
Sd/-
V.G.ARUN JUDGE Scl/07.01.2021 Crl.M.C.No.4301 of 2020 10 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT IN SC NO.321/2020 ON THE FILE OF THE DISTRICT AND SESSIONS COURT, THALASSERY.
ANNEXURE II CERTIFIED COPY OF THE SURETY BOND DATED 04/10/2004.