Kerala High Court

M. Govindan Kutty vs The Deputy Superintendent Of ... on 7 January, 2021

         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

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

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

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

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

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

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