Kerala High Court
Mathias Oliver vs State Of Kerala on 3 September, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
CRL.MC NO. 7376 OF 2024
CRIME NO.257/2022 OF Kanjiramkulam Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.849 OF 2023 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -III,NEYYATTINKARA
PETITIONER/2ND RESPONDENT:
MATHIAS OLIVER
AGED 50 YEARS
S/O OLIVER, AGED 50 YEARS, CHILANTHIVILAKOM, POZHIYOOR,
KULATHOOR VILLAGE, THIRUVANANTHAPURAM, PIN - 695132
BY ADVS.
S.MOHAMMED AL RAFI
THAJUNA MARIA FRANCIS
RESPONDENTS/STATE&COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 STEFIN
S/O JERIN, ADUMBU THEKKEKARA, KOCHUTHURA, KARUMKULAM,
THIRUVANANTHAPURAM, PIN - 695526
OTHER PRESENT:
SRI. NOUSHAD K. A. (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
03.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 7376 OF 2024 2
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BECHU KURIAN THOMAS, J.
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Crl.M.C.No. 7376 of 2024
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Dated this the 3rd day of September , 2024
ORDER
The petitioner claims to be a priest studying in Vienna
who is arrayed as 2nd accused in C.C.No. 849/2023 on the files
of Judicial First Class Magistrate Court-III, Neyyattinkara. He
seeks to quash the proceedings initiated against him though
this petition under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023.
2. Prosecution alleged that, the accused had
promised to procure job for the defacto complainant and various
others at Germany and collected large amounts of money and
thereafter failed to provide the employment or return the amount
as promised and thereby committed the offences under Section
406, 420 read with Section 34 of the Indian Penal Code.
3. Shri. Mohammed Al Rafi S., the learned
counsel for the petitioner contended that the prosecution
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materials collected during investigation would not reveal the
involvement of petitioner under any circumstances whatsoever.
According to the petitioner, except for a bald statement by the
3rd accused, there is nothing to connect the petitioner with the
crime. It was also submitted that even if the entire prosecution
allegations are admitted it would not reveal that the petitioner
had received any amount of money and therefore the
prosecution is liable to be quashed.
4. Shri. Nousahd K.A, the learned public
prosecutor on the other hand contended that the statement of
the witnesses clearly indicate the involvement of the petitioner.
It was also pointed out that, even the First Information
Statement itself revealed the involvement of petitioner and
therefore this is not a fit case to exercise the jurisdiction under
section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
5. I have considered the rival contentions. As
rightly pointed out by the learned Public Prosecutor petitioner's
name has been specifically mentioned in the First Information
Statement itself. The uncontroverted allegations in the Final
report would certainly indicate the involvement of the petitioner.
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The question whether those allegations are sufficient to prove
the offence alleged against the petitioner is a matter which can
be decided only after trial. Considering the nature of jurisdiction
exercised under section 482, this Court ought to be cautious
and circumspect in interfering with the proceeding.
6. The Supreme Court has repeatedly observed
that while exercising the power under Section 482 Cr.P.C, it is
not open for the Court to sift the materials or to weigh the
materials and then come to the conclusion one way or the other
(see the decision in State of Kerala v. O.C Kuttan, [1999(2)
SCC 651]). Similarly the power under Section 482 CRPC
should be exercised sparingly and cautiously and only when the
Court is of the opinion that there will be gross miscarriage of
justice if it is not so exercised as held in Mahendra K.C v.
State of Karnataka and others [2022 (2) SCC 129].
7. In view of the above, I do not find any merit in
this petition under section 528 of the BNNS.
8. However, if in case the petitioner is advised to
seek the remedies for discharge he is certainly at liberty to do
so. If any such application is filed the same shall be considered
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in accordance with law provided the petitioner is entitled to file
such an application.
With the above observation this Crl.M.C is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
mus
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PETITIONER ANNEXURES
Annexure A CERTIFIED COPY OF THE FIRST INFORMATION
REPORT ALONG WITH FI STATEMENT IN CRIME
NO.257/2022OF KANJIRAMKULAM POLICE
STATION
Annexure B CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.257/2022OF KANJIRAMKULAM
POLICE STATION
