Kerala High Court
V.K.Harikumar vs State Of Kerala on 25 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.1337 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.MC NO. 1337 OF 2019
CRIME NO.1153/2013 OF THIRURANGADI POLICE STATION,
MALAPPURAM
AGAINST CC NO.1401 OF 2016 ON THE FILE OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS, PARAPPANANGADI
PETITIONER/ACCUSED:
V.K.HARIKUMAR
AGED 57 YEARS
S/O. VELAYUDHAN PILLAI, SECRETARY, A.R
NAGAR SERVICE CO-OPERATIVE BANK, A.R NAGAR
P.O., THIRURANGADI, MALAPPURAM DISTRICT,
PIN-676 305.
BY ADVS.
T.V.GEORGE
JIMMY GEORGE (THADATHIL)
RESPONDENTS/COMPLAINANTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM - 682 031
2 C.K. SAREENA NAJMA, W/O. MUHAMED,
THEKKAYIL HOUSE, PULLARA,
VALLUVAMBRUM P.O, KONDOTTY TALUK,
PIN-673 642.
Crl.M.C. No.1337 of 2019
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BY ADV.
SRI.BABU S. NAIR - R2
SRI.RENJITH.T.R, SENIOR PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 25.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.1337 of 2019
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.1337 of 2019
----------------------------------------------
Dated this the 25th day of October, 2024
ORDER
This criminal miscellaneous case is filed to
quash the proceedings in C.C.No.1401/2016 on the
file of the Judicial First Class Magistrate Court-I,
Parappanangadi. It is a private complaint filed by
the 2nd respondent alleging offence punishable under
Section 354 of the Indian Penal Code.
2. The allegation in the complaint is that, on
8/11/2013, the 2nd respondent complainant while
working as Junior clerk in the AR Nagar Service Co-
operative Bank at 9 am, came to the Head office of
the Bank to submit her leave application, it is
alleged that the petitioner / accused who is the
Secretary of the said Co-operative Service Bank hold
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her hand demanding her to surrender for his sexual
lust as a pre-condition for sanctioning her leave
application and thus outraged her modesty. Based
on the same, she filed a complaint before the police
and Crime No.1153/2013 was registered alleging
offence punishable under Section 354 IPC.
Annexure-AI is the complaint and Annexure-AII is
the FIR. The Police, after investigation, referred the
case, as evident by Annexure-AIII. The refer notice
was issued to the 2nd respondent and thereafter the
2nd respondent gave Annexure-AV statement before
the learned Magistrate. The learned Magistrate,
based on the statement, took cognizance and issued
process to the petitioner as evident by Annexure-AVI
order. Aggrieved by the same, this criminal
miscellaneous case is filed.
3. Heard the learned counsel for the
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petitioner and the learned counsel for the 2nd
respondent.
4. Admittedly the Police registered a case
against the petitioner based on a complaint from the
2nd respondent. Annexure-AI is the complaint and
Annexure-AII is the FIR. The local Police conducted
the investigation in the case and perused CCTV
Camera photos of the Bank office and premises.
Thereafter the Police Officer concluded that the case
is a foisted one. It will be better to extract the
relevant portion of Annexure-AIII final report;
" ഈ കകേസസിൽ ഞഞാൻ നടതസിയ അകനന്വേഷണതസിലല
കകേസസിലലെ സലഭവസ്ഥലെമഞായ AR നഗർ co-op Bank-ൽ
സ്ഥഞാപസിചസിട്ടുള്ള CCTV യസിൽ സലഭവദസിവസലത ദൃശശ്യങ്ങൾ
പരസികശഞാധസിചതസിലല സഞാകസിലമഞാഴസികേളുലട
അടസിസ്ഥഞാനതസിലല 8.11.2013 തതീയതസി 9.10 മണസികക
AR നഗർ ബഞാങസിലന്റെ ലമയസിൻ ബഞാഞസിൽ അസസി.
ലസക്രട്ടറസിയുലട കേശ്യഞാബസിനസിൽ പരഞാതസികഞാരസി അതസിക്രമസിച
കേയറസി വനക അറ്റൻഡൻസക രജസിസ്റ്റർ ബലെമഞായസി എടുതക
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കപജുകേൾ കേതീറുകേയുല അതസിൽ നസിനല ഏതഞാനല കരഖകേൾ
കകേവശമഞാക്കുകേയുല അകതസമയല ബഞാങക ഹഞാളസികലെകക
അതസിക്രമസിച കേയറസിയ പരഞാതസികഞാരസിയുലട ഭർതഞാവക
Adv.മുഹമ്മദല പരഞാതസികഞാരസിയുല, ലസക്രട്ടറസി V.K.ഹരസികുമഞാർ
എനയഞാലള ലകേഞാല്ലുലമനക പറഞക ഭതീഷണസിലപ്പെടുത്തുകേയുല
പരഞാതസികഞാരസി ലസക്രട്ടറസിയുലട മുഖതക കകേവതീശസി അടസിച
കദകഹഞാപദ്രവല ഏൽപ്പെസിക്കുകേയുല തുടർനക പരഞാതസികഞാരസിയുല
ഭർതഞാവല ബഞാങക ഹഞാളസിൽ വചക പസിടസിവലെസി കൂടുകേയുല
തുടർനക പരഞാതസികഞാരസിലയ ബലെമഞായസി ഭർതഞാവക പുറകതകക
ലകേഞാണ്ടുകപഞാകുകേയുല ലചെയ്തതഞായസി ലവളസിവഞാകുന. എനഞാൽ
ഈ കകേസസിലലെ പരഞാതസികഞാസ്പദമഞായസി യഞാലതഞാരു സലഭവവല
നടനതഞായസി അകനന്വേഷണതസിൽ നസിനല ലവളസിവഞായസിട്ടസില.
കമൽ സഞാഹചെരശ്യതസിൽ പരഞാതസികഞാരസിലകതസിലരയുല
ഭർതഞാവക Adv.മുഹമ്മദസിലനതസിലരയുല ഒരു ക്രസിമസിനൽ കകേസക
വരുലമന ധഞാരണയസിൽ ആ കകേസക settlement
ആകണലമന ഉകദ്ദേശകതഞാലട പരഞാതസികഞാരസി തലന്റെ
ഭർതഞാവസിൻലറ ഒതഞാശകയഞാലട ഈ കകേസസിനക ആധഞാരമഞായ
പരഞാതസി തയഞാറഞാകസി തസിരൂരങ്ങഞാടസി കപഞാലെതീസക കസ്റ്റഷനസിൽ
ഹഞാജരഞാകസിയതഞാലണന പരഞാതസികഞാരശ്യല തതീർത്തുല
വശ്യഞാജമഞാലണനല വശ്യക്തമഞാക്കുനണക."
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5. From the above, it is clear that the Police
verified the CCTV records and thereafter referred the
matter. Annexure-AIV is the CCTV photographs of
the incident. Based on these facts, the police
referred the matter. This Court perused Annexure-
AVI order passed by the learned Magistrate taking
cognizance. The learned Magistrate has not
considered the refer report or the CCTV details
which is relied on by the police while taking
cognizance.
6. This Court in Parameshwaran Nair v.
Surendran [2009 (1) KLT 794] considered this point
in detail. The relevant portion of the above
judgment is extracted hereunder:
"12. If the original complaint stood dismissed
by the acceptance of the refer report submitted
after investigation the protest complaint if any filed
can only be treated as a second complaint. If so,
the protest complaint will lie only if there was a
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manifest error or manifest miscarriage of justice in
the earlier order or new facts which the complainant
had no knowledge of or with reasonable diligence
could not have brought forward in the previous
proceedings is adduced. When this is the legal
position, it is notlawful to the Magistrate to ignore
the final report submitted by the police under
Section 173(2) of the Code. Magistrate is bound to
consider the final report and decide which of the
options available to him is to be exercised."
7. Similarly in Kader v. State of Kerala
[1999 (3) KLT 55], this Court considered the same
point which is extracted hereunder:
"7. The Court noted that the scope of enquiry
under S.202 is the ascertainment of the truth or
falsity of the allegations made in the complaint on
the materials placed by the complainant before the
Court for the limited purpose of finding out whether
the prima facie case for issue of process has been
made out and for deciding the question purely from
the point of view of the complainant without at all
adverting to any defence that the accused may
have. Nevertheless, the Court has a duty to protect
the interest of the absent accused also because at
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the particular stage, the accused has no say in the
matter and the matter is decided without notice to
him. It is, therefore, open to the Magistrate to
scrutinise carefully the allegations made in the
complaint with a view to prevent the accused
therein from being called upon to face obviously
frivolous complaint and to find what material there
is to support the allegations made in the complaint.
The Magistrate has a duty not only to bring to book
a person or persons against whom grave allegations
are made in the complaint but also to protect the
interest of the absent accused in such matters. What
all matters he should take into consideration to
arrive at the conclusion that he should take
cognizance of the offence, will depend upon the
facts and circumstances of each case. He has
necessarily to consider the allegations made in the
complaint and the statement of the complainant
recorded under S.200 Cr.P.C. as also of the
witnesses examined under S.202 of the Cr.P.C. Along
with that, he has also to consider the result of
enquiry or investigation, if any, held by the police. It
cannot be said that the said data is not an essential
factor. The consideration of the materials under
S.202 of the Cr.P.C. is not an empty formality and
cannot be done in a perfunctory or mechanical
manner or by adopting a superficial approach."
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8. In the light of the above principle, it is the
duty of the learned Magistrate to consider the refer
report also while taking cognizance based on the
protest complaint. Therefore, I am of the
considered opinion that the order taking cognizance
as evident by Annexure-AVI is to be quashed and
the learned Magistrate should reconsider the matter
in the light of the refer report and also, if necessary,
in the light of the CCTV footage, if it is available with
the police.
Therefore this Criminal Miscellaneous Case is
allowed in the following manner:
1. The order dated 19.10.2016 in R.C.
No.28/2014 on the file of the Judicial
First Class Magistrate Court - I,
Parappanangadi is set aside.
2. The learned Magistrate is directed to
reconsider the matter in the light of
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Annexure-AIII refer report and also, if
necessary, after perusing the C.C.T.V.
footage, if it is available with the police
and also, in the light of the dictum laid
down by this Court in
Parameshwaran Nair v. Surendran
[2009 (1) KLT 794] and Kader v.
State of Kerala [1999 (3) KLT 55].
Sd/-
P.V.KUNHIKRISHNAN
JV/DM JUDGE
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PETITIONER ANNEXURES
ANNEXURE AI TRUE COPY OF COMPLAINT BEFORE THE
SUB INSPECTOR OF POLICE, CHEMMAD ON
8/11/2013.
ANNEXURE AII TRUE COPY OF FIR IN CRIME
NO.1153/2013, U/S.354 IPC AGAINST
THE PETITIONER.
ANNEXURE AIII TRUE COPY OF REFER REPORT DTD
28/11/2013 FILED BY THE SUB
INSPECTOR OF POLICE, BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE
COURT, PARAPPANANGADI.
ANNEXURE AIV TRUE CCTV PHOTOGRAPHS
ANNEXURE A V TRUE COPY OF STATEMENT GIVEN BY THE
2ND RESPONDENT BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT,
PARAPPANANGADI.
ANNEXURE A VI CERTIFIED COPY OF ORDER SHEET
ISSUING PROCESS
ANNEXURE AVII TRUE COPY OF FINAL REPORT IN CRIME
NO:1156/2013 AGAINST THE 2ND
RESPONDENT AND HER HUSBAND U/S.448,
427, 332, 294(b), 506(1) r/w Sec 34
IPC.
ANNEXURE A VIII TRUE COPY OF REVERSION ORDER DTD
30/3/2013 PASSED BY THE PRESIDENT OF
THE SERVICE CO-OPERATIVE BANK.
ANNEXURE AIX TRUE COPY OF DISMISSAL -CUM -
CONFIRMATION ORDER DTD 30/3/2013
PASSED BY THE DISCIPLINARY COMMITTEE
