Kerala High Court
V.Rajendrababu vs The State Of Kerala on 1 November, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
CRL.MC NO. 263 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
CRL.MC NO. 263 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.2097 OF 2019 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM
PETITIONER/ACCUSED :
1 V.RAJENDRABABU, AGED 66 YEARS
S/O. VASUPILLAI, RESIDING AT NANDHANAM,
MATHRUKA NAGAR-149,
ULIYACOVIL, KOLLAM, PIN - 691 019.
2 M.A.SATHAR, AGED 58 YEARS
S/O. MAJEED, RESIDIN GAT THADATHIVILA,
VIDHYA NAGAR 125, MANGAD.P.O.,
KOLLAM, PIN - 691 015.
3 SURESH G.S., AGED 50 YEARS
S/O. GOVINDHA PILLAI, SURESH BHAVAN,
ELLAMKULLAM, KALLUVATHUKKAL.P.O.,
KOLLAM, PIN - 691 578.
4 ARUN BABU V.G., AGED 54 YEARS
S/O. VELLUKUTTY, CHAITHRAM,
AAYIRAMTHENNGUCHERRY,
KOOTTIKKADA.P.O.,
KOLLAM, PIN - 691 020.
BY ADVS.
S.SREEKUMAR (KOLLAM)
K.VIJAYAN
NAMITHA RAJESH
A.NOUSHAD
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RESPONDENT/STATE AND DE FACTO COMPLAINANT :
1 THE STATE OF KERALA
REPRESENTED THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM - 682 031.
2 C.ANILKUMAR
AGED 55 YEARS
S/O. CHELLAPPAN,
LEKSHMI MANDHIRAM, KANJANGAD,
VADAKKEVILA.P.O.,
KOLLAM, PIN - 691 020.
BY ADV M.RAJESH
SRI. C.N. PRABHAKARAN (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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BECHU KURIAN THOMAS, J
......................................................
Crl.M.C.No.263 of 2024
...................................................
Dated this the 1st day of November, 2024
ORDER
Petitioners are the accused in C.C.No.2097/2019 on the files of the
Judicial First Class Magistrate Court-II, Kollam. Petitioners challenge the
aforesaid proceeding which was initiated on the basis of a private
complaint filed by the second respondent.
2. In the complaint filed by the second respondent, it is alleged that he
was a flower merchant at Chinnakkada, Kollam; and on 25.03.2017 the
accused who were the then Mayor, Standing Committee Chairman, the
Health Inspector and the Junior Health Inspector of Kollam Corporation
along with 25 other persons came with a crane and trespassed into his
bunk-shop and after assaulting him, lifted the bunk with the crane and
put it in a lorry and destroyed the flowers and other articles inside the
shop and thereby caused a loss of Rs.2,32,000/-, and committed the
offences punishable under Sections 379, 323 and 384 r/w Section 34 of
the Indian Penal Code, 1860.
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3. Sri.S.Sreekumar (Kollam), the learned counsel for the petitioners,
submitted that the second respondent was conducting an illegal
bunk-shop and when the Corporation attempted to remove it, he filed
O.S.No.369/2015 before the Munsiff Court, Kollam, which was dismissed.
Thereafter, the second respondent preferred an appeal, which was also
dismissed. Subsequently, a notice was issued by the Corporation on
16.11.2016 directing the petitioner to remove the bunk shop, failing
which it was informed that the Corporation would have to initiate
appropriate proceedings in accordance with law. After the reply issued
by the second respondent was rejected on 28.02.2017, Corporation
informed the second respondent that he could be allotted a space at
Asramam Link Road or if he is interested, they can even allot a room in
the building at Chinnakkada. Despite the above, when the second
respondent did not respond, Corporation acted in accordance with the
law and removed the bunk shop. It was submitted that as petitioners
had acted in accordance with law and no sanction had been obtained
and hence prosecution could continue. It was also submitted that no
offence is even made out. Furthermore, there are no materials to show
that petitioners assaulted, manhandled or even inflicted any injury to the
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second respondent, and further that the private complaint was filed only
four months after the alleged incident, and the complaint is vexatious.
4. Sri.M.Rajesh, the learned counsel for the second respondent, on the
other hand, submitted that petitioners 3 and 4 had, going by the
complaint itself, manhandled the second respondent, and therefore, this
case cannot be quashed under Section 482 Cr.P.C. as evidence is
required to be adduced. It was further submitted that the duty enjoined
upon petitioners 3 and 4 does not enable them to assault or manhandle
a person, and therefore, it is a matter which requires appreciation of
evidence.
5. I have heard the learned Public Prosecutor also.
6. The petitioners were officers of Kollam Corporation. Though allegations
have been made against petitioners 3 and 4 in the complaint that they
had manhandled the de facto complainant, there is no material to show
that any injury was occasioned to the second respondent. The complaint
itself is filed after four months of the alleged incident. Specific notices
were issued to the second respondent to remove his bunk-shop as it was
found to be unauthorized and without having any permit or licence from
the Corporation. When an illegal bunk shop is constructed or
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maintained, the Municipalities Act casts a duty upon the Corporation and
its Officials to act in accordance with law and remove it. If in the
discharge of a duty enjoined by law, any offence is committed, necessary
sanction ought to be obtained before prosecuting a public servant. In the
instant case, no such sanction was obtained by the second respondent for
prosecuting the petitioners.
7. Apart from the above, it is evident that petitioners removed the bunk
shop after following the due procedure by issuing notice and granting
sufficient opportunity to the second respondent to vacate the bunk shop
by himself. Despite such time being granted, the second respondent did
not comply with the notice, leaving the petitioners with no option but to
resort to the remedies provided under law. Therefore, I am satisfied that
the offences allegedly committed by the petitioners were acts done under
the colour of duty.
8. Furthermore, no materials are produced to justify the claim of
manhandling. The second respondent has not produced any treatment
certificate or wound certificate to justify such a claim. The complaint in
Annexure-A1 is frivolous and vexatious, intended only to wreak
vengeance for removing the illegal bunk shop. Continuance of the
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prosecution would result in manifest injustice to the petitioners, and the
same is required to be nipped in the bud itself.
9. In a recent decision in Achin Gupta v. State of Haryana [2024 SCC
Online SC 759], it was observed by the Supreme Court that though the
inherent jurisdiction should be exercised sparingly, carefully and with
caution, since the authority of the court exists for advancement of justice
and if any attempt is made to abuse that authority so as to produce
injustice, the court has the power to prevent such abuse. It was also
observed that it would be an abuse of the process of the court to allow
any action which would result in injustice and prevent the promotion of
justice and in the exercise of the powers, the court would be justified to
quash any proceeding if it finds that the initiation or continuance of it
amounts to abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice. The Court went
on to hold that when no offence is disclosed by the complaint, the court
may even examine the question of fact. When a complaint is sought to
be quashed, it is permissible to look into the materials to assess what
the complainant has alleged and whether any offence is made out even
if the allegations are accepted in toto.
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10. Thus, when criminal prosecution is found to be vexatious, refusing
to quash it would result in manifest injustice to the persons facing the
prosecution. In such circumstances, the court is bound to quash the
proceedings.
11. In view of the above, the proceeding in C.C.No.2097/2019 on the
files of the Judicial First Class Magistrate Court-II, Kollam, is hereby
quashed.
The Criminal Miscellaneous Case. is allowed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/02/11/2024
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PETITIONER ANNEXURES
ANNEXURE -A1 TRUE COPY OF THE PETITION IN CC NO. 2097/2019 OF
JFMC-II, KOLLAM.
ANNEXURE-A 2 TRUE COPY OF THE NOTICE DATED 16.11.2016
ISSUED BY THE SECRETARY KOLLAM
CORPORATION.
ANNEXURE -A3 TRUE COPY OF THE NOTICE DATED 28.02.2017
ISSUED BY THE SECRETARY KOLLAM
CORPORATION.
