Kerala High Court
V. Syna Rani vs The State Of Kerala on 12 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
Crl.MC.No.4605 OF 2015(F)
AGAINST THE ORDER/JUDGMENT IN ST 1594/2015 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, VARKALA
CMP NO.9115/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VARKALA
PETITIONER/4TH ACCUSED:
V. SYNA RANI, AGED 49 YEARS, D/O. REMANI,
CHITHRALAYAM, T.C.24/1923, THYCAUD
P.O.,THIRUVANANTHAPURAM -695 014.
BY ADVS.
SRI.K.K.VIJAYAN
SMT.MINI GANGADHARAN
RESPONDENT/COMPLAINANT & STATE:
1 THE STATE OF KERALA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,HIGH COURT
OF KERALA, ERNAKULAM-682 031.
2 DR. ANEESH
APSARA, NEAR TOWN HALL, ATTINGAL P.O,
ATTINGAL,CHIRAYINKIL TALUK. 695 101.
R1-2 BY ADV. SMT.K.AMMINIKUTTY
R1 BY ADV. SRI.N.RAGHURAJ
OTHER PRESENT:
SRI.C.S.BREEZE, SR.P.P
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.02.2021 ALONG WITH Crl.MC.6910/2015(E), THE COURT ON 12.02.2021
PASSED THE FOLLOWING:
Crl.MC.No.4605 & 6910 OF 2015 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
Crl.MC.No.6910 OF 2015
AGAINST THE ORDER/JUDGMENT IN ST 1594/2015 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,VARKALA
PETITIONER/3RD ACCSUED:
DEEPA HARIDAS
AGED 44 YEARS, D/O. HARIDAS, T.C.28/2348, UPASANA,
NEAR CHETTIKULANGARA TEMPLE G. P.O.
THIRUVANANTHAPURAM 695 009
BY ADVS.
SRI.K.K.VIJAYAN
SRI. KUMBAZHA K.R.RAJESH KUMAR
SRI. PONNI J
SMT.MINI GANGADHARAN
SRI.N.C.SAJUNAM
RESPONDENT/COMPLAINANT & STATE:
1 STATE OF KERALA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
2. DR. ANEESH, APSARA, NEAR TOWN HALL,
ATTINGAL P.O., ATTINGAL, CHIRAYINKIL TALUK 695 101
R1 BY ADV. SMT.K.AMMINIKUTTY
R1 BY ADV. SRI.N.RAGHURAJ
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.02.2021, ALONG WITH Crl.MC.4605/2015(F), THE COURT ON
12.02.2021 PASSED THE FOLLOWING:
Crl.MC.No.4605 & 6910 OF 2015 3
M.R.ANITHA, J.
---------------------------------
Crl.M.C.Nos.4605 & 6910 of 2015
---------------------------------
Dated this the 12th day of February, 2021
COMMON ORDER
These petitions were filed by the 3 rd and 4th accused in
S.T.No.1594/2015 on the file of Judicial First Class Magistrate
Court-I, Varkkala. Petitioner in Crl.M.C.No.6910/2015 is the
3rd accused and petitioner in Crl.M.C.No.4605/2015 is the
4th accused in S.T.No.1594/2015 on the file of the Judicial First
Class Magistrate Court-I, Varkkala.
2. Annexure AI is the complaint filed by the
2nd respondent alleging the commission of offence under Section
499 and 500 IPC against the accused persons. Prosecution case
as alleged in Annexure-A1 complaint is that the accused persons
who are prosecuting O.S.No.1131/2011 before the Principal Sub
Court, Thiruvananthapuram spread abuses against the
2nd respondent/complainant and circulated the copies of the
injunction application to the persons who were known to him
with malafide intention to defame him. It is also alleged that
2nd respondent exploiting the physical infirmity of deceased one
Mr. Purushothaman aided him in creating a sham document in
Crl.MC.No.4605 & 6910 OF 2015 4
the name of one Mrs.Asha Jose, who is the first defendant in
O.S.No.1131/2011. It is also alleged that there is suspicion in the
death of Purushothaman and the complainant/2nd respondent is
having participation in that. The suit was one for declaration and
other consequential reliefs to declare the deed executed by
Purushothaman in favour of first defendant as void.
3. Second defendant in the suit is the 2 nd respondent in
this petition. Petitioner in Crl.M.C.No.6910/2015 is the third
plaintiff and petitioner in Crl.M.C.No. 4605/2015 is the 6 th
plaintiff in the suit. The petitioner in Crl.M.C.6910/2015 is a
close relative of the 2nd respondent. Both are children of
predeceased siblings of late Purushothaman. Accused 1 & 2 in
the complaint are the first and second plaintiffs in the suit and
the suit was dismissed on 30.05.2015 finding that the deed is
valid. So according to the petitioners, Annexure AI complaint
does not disclose any specific overt act and it is very vague and
there is no averment of common intention to cause defamation
to the complainant/2nd respondent. There is no averment of
criminal conspiracy. The complaint is silent on what aspect the
petitioners contributed for constituting an offence as alleged on
the 2nd respondent. The notice sent by the petitioner prior to the
Crl.MC.No.4605 & 6910 OF 2015 5
filing of the complaint has been replied properly. So the intention
of the 2nd respondent is only to wreck vengeance. Hence, the
petitioners have approached this Court to quash Annexure AI
compliant in S.T.No.1594/2015 on the file of Judicial First Class
Magistrate Court-I, Varkkala as far as it is against the present
petitioner s 3rd and 4th accused.
4. Notice was issued to the respondents. Learned counsel
Sri. K.K. Vijayan appeared for the petitioners, Senior Public
Prosecutor Sri.M.S. Breeze appeared on behalf of 1st respondent-
State. Second respondent appeared through Sri.N. Raghuraj.
Since the relief sought in both petitions is to quash Annexure A1
complaint in S.T.No.1594/2015, both the cases were heard
together.
5. According to the learned counsel for the petitioners, in
Annexure AI complaint, the alleged defamatory imputations are
not stated. It is also his contention that there is no allegation in
the complaint that the alleged imputation has lowered the
reputation of the complainant/2nd respondent and hence it will
not come under Explanation 4 of Sec. 499 IPC.
6. Though the learned counsel for the petitioners would
Crl.MC.No.4605 & 6910 OF 2015 6
contend that Ext.A1 does not state about any defamatory
imputation, in paragraph No.3 of Ext.A1 there is averment that
accused persons are circulating the copies of the plaint and
injunction application in O.S.No.1131/2011 alleging that the
court has allowed the injunction application and thereby
approved the allegations in the plaint and injunction petition. It
is also alleged that accused have shown the copy of the plaint
and injunction application to several friends and relations and
read over to them and translated to them in Malayalam and
repeated that court has approved all the allegations and also
asked them to read the contents in the plaint and petition. It is
further alleged that thereafter several people asked him whether
he has influenced Purushothaman and got document forged on
behalf of his sister and that it is heard that he has a role in the
death of Purushothaman and thereby the complainant was
defamed and put under desperation.
7. According to the learned counsel for the
2nd respondent, the averments in paragraph Nos.3 and 5 would
point the commission of offence by the accused persons. In
paragraph No.5 it has been alleged that after impleading one
Thankamony who was the Manager of late Purushothaman,
Crl.MC.No.4605 & 6910 OF 2015 7
written statement was filed by him and thereafter again they
started propagating the copies of the amended plaint and
injunction petition to several friends and relations of the
2nd respondent/complainant. Accordingly, on 6.10.2014 at
3.30 p.m 4th accused and 7th accused went to the shop of the
wife's uncle of the complainant, by name Ashokan and gave
copy of the plaint and injunction petition too in front of the
customers who are in acquaintance with the 2 nd
respondent/complainant and gave their explanations to the same
to the persons present there. On the same day, the 3 rd accused
and 5th accused went to the Dental Clinic of Dr. Manoj Kumar
who is a colleague of the 2 nd respondent/complainant and in front
of the patients who are known to the complainant/2 nd respondent
distributed the copy of the plaint and injunction petition and
gave wrong explanation of the same to them.
8. The learned counsel for the 2nd respondent also would
contend that the said Ashokan and Dr.Manoj Kumar have been
cited as witnesses. Though the learned counsel for the
petitioners would contend that the defamatory imputations are
not stated in Annexure AI complaint paragraph No.3 of the
complaint states about the creation of a fake document by the 2 nd
Crl.MC.No.4605 & 6910 OF 2015 8
respondent/complainant on behalf of his sister on influencing
Purushothaman and further it is alleged that people asked him
as to whether he has any hand in the death of
Sri.Purushothaman etc. would be defamatory prima facie if at all
the document is a genuine document. So when people who heard
the said allegation from the accused with respect to the 2 nd
respondent/ complainant and those people asked the 2nd
respondent/ complainant about the imputation there would be
materials prima facie to prove the allegation. Contention to the
contra advanced by the petitioners does not hold good.
9. The learned counsel also seek in aid of Explanation
4 of Sec.499 IPC and content that there is no averment in the
complaint that the imputation alleged has lowered the reputation
of the 2nd respondent/complainant and hence the complaint is not
prima facie sustainable. But in paragraph No.3 there is specific
averment that several people asked the 2 nd respondent/
complainant whether he had forged a document influencing
Purushothaman on behalf of his sister and it is further stated
that people told him that there is a saying that he has some role
in the death of Purushothaman and it has been stated further
that due to the said imputation he was defamed a lot and put
Crl.MC.No.4605 & 6910 OF 2015 9
under desperation. So there is prima facie material to show that
due to imputation made, reputation of 2nd respondent/
complainant was lowered is there.
10. It is true that the learned counsel for the petitioners
drew my attention to Rangku Dutta @ Ranjan Kumar Dutta v.
State of Assam [2011 KHC 4518]. Paragraph No.18 of the said
judgment was highlighted by the learned counsel. In para No.18
it has been stated that Section 20A(1) of Terrorist and Disruptive
Activities (Prevention) Act, 1987 is a mandatory requirement of
law since it starts with an overriding clause and, thereafter to
emphasize its mandatory nature, it uses the expression "No"
after the overriding clause. It is also stated that whenever the
intent of a statute is mandatory, it is clothed with a negative
command. G.P. Singh's Principles of Statutory Interpretation,
12th Edition at Pg.No.404, has been quoted which reads as
follows:
"As stated by CRAWFORD: "Prohibitive or negative words can
rarely, if ever, be directory. And this is so even though the
statute provides no penalty for disobedience. As observed by
SUBBARAO, J.: "Negative words are clearly prohibitory and are
ordinarily used as a legislative device to make a statute
imperative". S.80 and S.87 -B of the Code of Civil Procedure,
1908, S.77 of the Railways Act, 1890; S.15 of the Bombay Rent
Crl.MC.No.4605 & 6910 OF 2015 10
Act, 1947; S.213 of the Succession Act, 1925; S.5-A of the
Prevention of Corruption Act, 1947; S.7 of the Stamp Act, 1899;
S.108 of the Companies Act, 1956; S.20(1) of the Prevention of
Food Adulteration Act, 1954; S.55 of the Wild Life Protection
Act, 1972 the proviso to S.33(2)(b) of the Industrial Disputes
Act, 1947 (as amended in 1956); S.10A of Medical Council Act,
1956 (as amended in 1993), and similar other provisions have
therefore, been construed as mandatory. A provision requiring
'not less than three months' notice is also for the same reason
mandatory." We are in respectful agreement with the aforesaid
statement of law by the learned author."
11. As pointed out earlier, the above decision was quoted
by the learned counsel to emphasis the scope of Explanation 4 of
Section 499 IPC. But I have already found that when there is
specific averment in the complaint that the act of the accused in
circulating and propagating that complainant/2 nd respondent
forged document on behalf of his sister and he has got a role in
the death of Purushothaman etc. that would amount to be
defamatory, prima facie and there is also specific averment by
the complainant/2nd respondent in paragraph No.3 that the said
allegations have defamed him and put him in mental agony. So it
cannot be said prima facie that there is no averment in the
complaint about the lowering of reputation of the 2 nd respondent/
complainant in Annexure AI complaint.
12. It is well settled that the inherent powers vested with
Crl.MC.No.4605 & 6910 OF 2015 11
this Court under Section 482 Cr.P.C can be exercised only
sparingly with caution to prevent an abuse of process of court or
otherwise for the ends of justice. In this context, I may refer to
the decision in State of Bihar v. Murad Ali Khan and Ors.
[AIR 1989 SC 1 : 1988 KHC 1071]. Paragraph No.6 of the said
judgment is relevant in this context to be extracted and it reads
as follows:
"6. The second ground takes into consideration the merits of the
matter. It cannot be said that the complainant does not spell out
the ingredients of the offence alleged. A complaint only means
any allegation made orally or in writing to a Magistrate, with a
view to his taking action, that some person, whether known or
unknown, has committed an offence.
It is trite that jurisdiction under S.482, Cr.P.C., which saves the
inherent power of the High Court, to make such orders as may
be necessary to prevent abuse of the process of any Court or
otherwise to secure the ends of justice, has to be exercised
sparingly and with circumspection. In exercising that
jurisdiction the High Court would not embark upon an enquiry
whether the allegations in the complainant are likely to be
established by evidence or not . That is the function of the trial
Magistrate when the evidence comes before him. Though it is
neither possible nor advisable to lay down any inflexible rules to
regulate that jurisdiction, one thing, however, appears clear and
it is that when the High Court is called upon to exercise this
jurisdiction to quash a proceeding at the stage of the Magistrate
taking cognizance of an offence the High Court is guided by the
allegations, whether those allegations, set out in the complaint
or the charge-sheet, do not in law constitute or spell out any
offence and that resort to criminal proceedings would, in the
circumstances, amount to an abuse of the process of the court
or not."
Municipal Corporation of Delhi v. R.K. Rohtagi [1983 KHC 404
para 10:(1983) 1 SCR 884 : AIR 1983 SC 67 at page No.70], is
Crl.MC.No.4605 & 6910 OF 2015 12
also relevant to be quoted, which reads as follows:
"It is, therefore, manifestly clear that proceedings against an
accused in the initial stages can be quashed only if on the face
of the complainant or the papers accompanying the same, no
offence is constituted. In other words, the test is that taking the
allegations and the complaint as they are, without adding or
subtracting anything, if no offence is made out then the High
Court will be justified in quashing the proceedings in exercise of
its powers under S.482 of the present Code."
13. In this case, the complaint - Annexure AI cannot be
said as an abuse of process of law. It cannot also be found that
there are no prima facie materials. Hence I am of the
considered view that these are not fit cases to exercise the
inherent powers vested in this Court to quash the proceedings in
S.T.No.1594/2015 on the file of the Judicial First Class
Magistrate Court-I, Varkkala as against the petitioners/accused
Nos.3 and 4.
In the result, these Crl.M.C.Nos.4605/2015 & 6910/2015
are found to be devoid of any merit and hence are dismissed.
Sd/-
M.R.ANITHA
shg JUDGE
Crl.MC.No.4605 & 6910 OF 2015 13
APPENDIX OF CRL.MC 4605/2015
PETITIONER'S/S ANNEXURES:
ANNEXURE A1 THE CERTIFIED COPY OF COMPLAINT IN ST
NO.1594/2015 ON THE FILE OF THE JFMC-I,
VARKALA.
ANNEXURE A2 TRUE PHOTOSTAT COPY OF THE NOTICE ISSUED
TO THE ACCUSED PERSONS
ANNEXURE A3 TRUE PHOTOSTAT COPY OF THE POSTAL RECEIPTS
(9 IN NUMBER)
ANNEXURE A4 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT
CARDS (7 IN NUMBER)
ANNEXURE A5 PHOTOSTAT COPY OF THE REPLY NOTICE ISSUED
BY THE 2ND ACCUSED.
Crl.MC.No.4605 & 6910 OF 2015 14
APPENDIX OF CRL.MC 6910/2015
PETITIONER'S/S ANNEXURES:
ANNEXURE A1 TRUE PHOTOSTAT COPY OF COMPLAINT IN ST
NO.1594/2015 ON THE FILE OF THE JFMC-I, VARKALA
ANNEXURE A2 TRUE PHOTOSTAT COPY OF THE NOTICE ISSUED TO THE
ACCUSED PERSONS
ANNEXURE A3 TRUE PHOTOSTAT COPY OF THE POSTAL RECEIPTS (9 IN
NUMBER)
ANNEXURE A4 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARDS
(7 IN NUMBER)
ANNEXURE A5 TRUE PHOTOSTAT COPY OF THE REPLY NOTICE ISSUED
BY THE 2ND ACCUSED
