"Cases which are substantially civil disputes though with criminal facets can be quashed" if disputes are settled and there is no chance of conviction, holds Justice Alexander Thomas of the Kerala High Court relying on Gold Quest International Pvt. Ltd. v. State of Tamil Nadu and Others reported in 2014(2) KLD 738 (SC)

The High Court of Kerala while quashing prosecution proceedings in a case¹ filed under Section 482 Cr.P.C, has followed and applied the dictum laid down in Gold Quest International Pvt. Ltd. v. State of Tamil Nadu and Others reported in 2014(2) KLD 738 (SC), that in cases which are substantially of civil disputes though with criminal facets, if the parties had entered into settlement and it has become clear that there are no chance of conviction, there is no illegality in quashing the proceedings under Section 482 of the Code of Criminal Procedure r/w Article 226 of the Constitution of India. But that however such an approach may not apply where the nature of the offence is very serious like those involving offences like rape murder robbery dacoity and cases under the Prevention of Corruption Act, under the NDPS Act etc. in which punishment of life imprisonment or death can be awarded.

 

These observations were made by Justice Alexander Thomas while His Lordship was considering a Criminal Miscellaneous Case filed seeking invocation of the High Court’s inherent powers conferred as per Sec. 482 of the Cr.P.C to quash all further proceedings in Calendar Case, C.C.No.1095/2009 pending on the file of the Judicial First Class Magistrate's Court-I, Ernakulam. The said Calendar Case arose out of the Crime No.108/2007 of Ernakulam Town Police Station which was one registered under Sections 406, 420 read with Sec. 34 of the IPC against the petitioners who were the two accused therein. 

The allegations against the accused (petitioners) in a nutshell was that the accused had auctioned chitty from Kizhakkemudom Chits and Finance Investments and later did not remit the subscription and the 2^nd accused stood as guarantor and cheated the de-facto complainant's chit company and thereby committed the above said offences. The complaint was filed by the 2^nd respondent in his in his capacity as the power-of-attorney holder of the chit company. It was submitted by the petitioners that after investigation, the Police filed final report/charge sheet, which has led to the institution of C.C.No. 1095/2009 on the file of the Judicial First Class Magistrate's Court- I, Ernakulam. The petitioners also stated that now the entire disputes between the petitioners (accused) and the 2nd respondent (de-facto complainant) have been settled out of court. Therefore, it was submitted that even if the prosecution is allowed to proceed, it would not serve any purpose. It was in the conspectus of these facts and circumstances that the petitioners had approached the High Court of Kerala under Section 482, Cr.P.C.

The 2^nd respondent (defacto complainant) had sworn to affidavit dated 4^th September, 2014 (produced as Annexure-III in the Crl.M.C. filed by the petitioners), wherein it was stated that the chit company/firm has no further grievances in the matter and the money owed to him has been fully settled and that the power-of-attorney has authorized the 2^nd respondent to collect the amount for and on behalf of the chit company from the petitioners (accused) and that the 2^nd respondent has received the said money due from the petitioners (accused) and that there exists no grievance as far as the 2^nd respondent or his chit company is concerned. Accordingly, it was submitted that the 2^nd respondent does not want to continue the criminal proceedings against the petitioners in the instant crime as the entire disputes have been settled between them and they are now in cordial relationship and the pendency of the case would adversely affect their relationship, etc. 

It was in this factual context that the prosecution proceedings were quashed by Justice Alexander Thomas after referring to, and relying on the dictum laid down by the Apex Court in the case of Gold Quest International Pvt. Ltd. V State of Tamil Nadu and Others (supra). 

In the said decision, the appellant company therein had over 60,000 members as consumers in and around Chennai city alone and a complaint was made in 2003 by the private respondent therein against the appellant company alleging non-compliance of the issuance of numismatic gold coin on receipt of Rs.16,800/- from the wife of that party respondent and as per the promise made by the appellant company. Some other customers also had complaints on the basis of which the police registered a case under Section 420 of the Indian Penal Code r/w Secs. 4, 5 and 6 of the Prize Chits and Money Circulation (Banning) Act, 1978 and the appellant company filed a Writ Petition before the Madras High Court for quashing of the impugned FIR therein and since all the claimants including the complainant settled the dispute with the appellant company and entered into an agreement, the learned Single Judge of the High Court had quashed the FIR and allowed the Writ Petition. However the state challenged the order of the learned Single Judge which quashed the impugned FIR and the Division Bench allowed the writ appeal filed by the State and directed the police authority to investigate the crime. Aggrieved by this, the company had taken upthe mat ter in Supreme Court in Appeal. After referring to a catena of rulings of the Apex Court as in B.S Joshi and Others v. State of Haryana and Another reported in 2003(4) SCC 675, Nikhil Merchant v. Central Bureau of Investigation and Another reported in 2008(9) SCC 677, Gian Singh v. State of Punjab reported in 2012(10) SCC 603 and other cases, the Apex Court came to the conclusion that in cases which are substantially of civil disputes though with criminal facets, if the parties had entered into settlement and it has become clear that there are no chance of conviction, there is no illegality quashing the proceedings under Section 482 of the Code of Criminal Procedure r/w Article 226 of the Constitution of India. But that however such an approach may not apply where the nature of the offence is very serious like those involving offences like rape murder robbery dacoity and cases under the Prevention of Corruption Act, under the NDPS Act etc. in which punishment of life imprisonment or death can be awarded. In this view of the matter, the Supreme Court set aside the judgment of the Division Bench of the Madras High Court and restored the judgment of the learned Single Judge and upheld the quashment of the FIR for offences under Sec. 420 of the Indian Penal Code.

Applying the law laid down in the case of Gold Quest International Pvt. Ltd. V State of Tamil Nadu and Others (supra) to the facts and circumstances of the case at hand, Justice Alexander Thomas held : “This Court is of the considered opinion that the continuance of the prosecution is unwarranted and that the prayer of the petitioners could be allowed in the light of the aforementioned rulings in the Supreme Court as in Gold Quest International Pvt. Ltd. v. State of Tamil Nadu and Others reported in 2014 (2) KLD 738 (SC). In the result, the Crl.M.C. is allowed.” Accordingly, the Court quashed the charge sheet filed by the Police and all further proceedings in C.C. No. 1095/2009 on the file of the Judicial First Class Magistrate's Court- I, Ernakulam.

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1. Crl. M.C. No. 5164 of 2014 decided on 28.11.2014

Decision of Apex Court in Sakiri Vasu's case 'does not empower magistrates to intervene or usurp into the process of investigation, or to direct the police to conduct the investigation in a particular manner'; only a very limited power of monitoring the investigation within limits prescribed is permissible, holds the High Court of Kerala

The High Court of Kerala speaking through Justice P. Ubaid has opined that the decision of the Apex Court in Sakiri Vasuv. State of Uttar Pradesh¹ does not empower Judicial Magistrate to intervene or usurp into the process of investigation, or to direct the police to conduct the investigation in a particular manner, or to direct that investigation shall be taken over by such and such persons, and that it only permits a very limited power of monitoring the investigation, within the limits prescribed by the Hon'ble Supreme Court in the said decision. 

The High Court of Kerala was considering a petition² filed under Section 482 of the Code of Criminal Procedure, 1973 by Hemanth @ Honey, the 13^th accused in crime No.634/13 of the Balaramapuram Police Station, Thiruvananthapuram, registered under Sections 143, 147, 148, 324 and 307 r/w 149 of IPC and Section 27 of the Arms Act. 

Initially the petitioner was not arraigned as accused in the crime. When the police proceeded against him, and submitted a report in court arraigning him as 13^th accused in the crime, he filed Annexure III petition for a direction handing over investigation in the said crime to an officer of high repute and integrity, not below the rank of Superintendent of Police, to ensure fair and proper investigation, which petition is still pending before the learned Judicial First Class Magistrate III, Neyyattinkara. 

The petitioner filed the present petition seeking orders from the High Court for a direction to the learned Magistrate for expeditious consideration, and disposed of the said application filed by him. The petitioner sought such  an order in view of the directions of the Hon'ble Supreme Court in Sakiri Vasu v. State of Uttar Pradesh (supra). 

The Court observed that in an identical proceeding³ the High Court of Kerala has explained the scope of such directions, as to the extent to which judicial First Class Magistrate can act in exercise of the powers of supervision over investigation. In Crl. M.C. 5290/14, by order dated 19.9.2014, this court directed the trial court in such a situation, to take necessary steps on the application for such a relief, within the limits possible and within the directions made by the Hon'ble Supreme Court. In that case filed by the same petitioner, though in respect of a different crime, he had sought for a direction to the learned Magistrate to take decision on the application filed by him before the learned Magistrate as CMP No. 5590/2014, for a direction to hand over the investigation in the said crime to an officer of high repute and integrity, not below the rank of Superintendent of Police. In that case which was also decided by Justice P. Ubaid, the High Court of Kerala had held that the said decision of the Supreme Court does not empower magistrates to intervene or usurp into the process of investigation, or to direct the police to conduct the investigation in a particular manner, or to direct that investigation shall be conducted by any particular officer of any particular rank or seniority. Justice P. Ubaid in that case had held: “What is possible is only the very limited power monitoring the investigation, that too within the limits prescribed by the Supreme Court. The Magistrate will have to act within the limits prescribed by the Supreme Court in Sakiri Vasu's case (cited supra). A direction as sought by the petitioner cannot in fact be made by the learned Magistrate. If so, this Court cannot direct the learned Magistrate under Section 482 Cr.P.C. to give such a direction or to pass such an order.”

Considering the present petition, Justice P. Ubaid said that the decision of the Hon'ble Supreme Court does not empower Judicial Magistrate to intervene or usurp into the process of investigation, or to direct the police to conduct the investigation in a particular manner, or to direct that investigation shall be taken over by such and such persons. “What is possible is only the very limited power of monitoring the investigation, within the limits prescribed by the Hon'ble Supreme Court’, held Justice P. Ubaid. 

The Court added that a proper decision will have to be taken by the learned Magistrate on the application brought by the petitioner, within the limits prescribed by the Supreme Court. “Whatever orders possible in view of the decision of the Supreme Court will have to be passed by the learned Magistrate without any delay, when the petitioner has a genuine grievance that he was arraigned as accused by the police without any basis”, said the Court.

Accordingly, the petition filed by the petitioner was closed by the Kerala High Court with direction to the court below, that "orders within the limits possible under the law in view of the decision of the Supreme Court in Sakiri Vasu v. State of Uttar Pradesh (supra), shall be expeditiously passed on the petition brought by the petitioner".

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1. 2008 (2) SCC 409

2. Hemanth @ Honey v. State of Kerala  - Crl.MC.No. 6965 of 2014, decided on 20.12.2014

3. Hemanth @ Honey v. State of Kerala  - Crl.MC.No. 5290 of 2014, decided on 19.09.2014

Confession made to police during investigation by one accused will not bind the other accused in any manner, holds the High Court of Kerala

Justice P. Ubaid of the High Court of Kerala, in a case¹ where the police arraigned a person (petitioner) as the second accused, simply on the basis of a confession made by the first accused to the police during investigation, has held that the confession made by a co-accused is admissible, provided, it was made to somebody other than police but confession made to police during investigation by one accused will not bind the other accused, in any manner. 

The Court passed the judgment in a petition filed under Section 482 of the Code of Criminal Procedure, 1973, by the second accused in C.C.No.1547/2010 of the Judicial First Class Magistrate-I, Aluva. Crime in the said case was registered by the police under Sections 465, 468 and 471 IPC, after a delay of 5 years on the basis of a communication received   from    the Additional     Director   General of Police (Intelligence) dated 14.04.2005.

The prosecution case was that the 1^st accused, Jomy Varghese, created a false National Trade Certificate with the help and assistance of the other accused, for the purpose of going abroad for employment. The copy of the communication received by the police from the Additional Director General of Police (Intelligence) showed  that the alleged document was created by one Aravind, a resident of Aluva. The petitioner contended that he is not the said person mentioned in the communication.  The petitioner claimed that he was now being prosecuted on the allegation that the alleged National Trade Certificate was forged at "Aravind Travels", at Aluva, and that the said concern belongs to the petitioner herein.

The petitioner stated in his petition that the complaint is definite that the certificate was created by one Aravind, and not at Aravind Travels. The police however alleged that it was created at the said concern by name Aravind Travels, that this concern belongs to the petitioner herein, and that is why the police arraigned him as the 2^nd accused, as the person who forged the alleged document.

The 2^nd accused filed the petition under Section 482 Cr.P.C. seeking quashing of the prosecution as against him on the ground that there is absolutely no material as against him at the hands of the prosecution.

The Court directed the learned Public Prosecutor to submit a report, on instructions, from the concerned Station House Officer, regarding the materials collected by the police to connect the petitioner with the said Aravind Travels. The Sub Inspector of Police, Aluva, accordingly, submitted a report on 29.10.2014. The Court observed that the said report does not reveal the connection between the petitioner and Aravind Travels, Aluva. “The report also does not answer the question put by the court; what materials are there to connect the petitioner with the alleged crime or with Aravind Travels, Aluva”, the Court added. 

The Court said that the Sub-Inspector of Police had failed to answer the definite case of the petitioner that he has no connection whatever with Aravind Travels, and that the said concern belongs to somebody else. The Court also observed that the learned Public Prosecutor submitted that on a perusal of the case diary, nothing definite could be found to connect the petitioner with the said Aravind Travels at Aluva. The Court further observed that the police arraigned the petitioner simply on the basis of a confession made by the first accused to the police during investigation.

It was in this backdrop that the High Court of Kerala held as follows:

“..the confession made by a co-accused is admissible, provided, it was made to somebody other than police. Confession made to police during investigation by one accused will not bind the other accused, in any manner.”

“This confession apart, there is absolutely no material at the hands of the police to arraign this petitioner, or to prosecute him, or to connect him with Aravind Travels, Aluva”, held Justice P. Ubaid who accordingly allowed the petition filed by the petitioner, and quashed the prosecution as against the petitioner herein as the  2^nd accused in C.C.No.1547/2010 of the Judicial First Class Magistrate Court-I, Aluva.

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1.Muhammed Kunhumarakkar v. State of Kerala

[ Crl.M.C.No. 4815 of 2014, decided on 20.12.2014 ]