2025:KER:24836 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947 CRL.MC NO. 7195 OF 2024 CRIME NO.815/2023 OF Peerumedu Police Station, Idukki AGAINST CC NO.50 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PEERUMEDU PETITIONER/ACCUSED: VARGHESE JOHN AGED 70 YEARS S/O. V.J. VARGHESE, VANIYATH HOUSE, KARADIKUZHI PO, PEERMADE, IDUKKI DISTRICT, PIN - 685531 BY ADVS. BIJU .C. ABRAHAM THOMAS C.ABRAHAM BASIL MATHEW RESPONDENTS/STATE AND DEFACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 SHEELA AGED 66 YEARS W/O. MOHANAN, KANJIRATHINKAL, OTTAPPALAM P.O, PEERMADE VILLAGE, IDUKKI DISTRICT, PIN - 685532 BY ADVS. R.SHABANA – FOR R2 NAZEER HUZAIN.H(K/1166/2020) SEENA C. - PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No. 7195 of 2024 ..2.. 2025:KER:24836 O R D E R Dated this the 24th day of March, 2025 Petitioner herein is the sole accused in Annexure-1 F.I.R. bearing No.815/2023 of Peerumade Police Station. The offence under Section 323 alone is alleged as per Annexure-2 charge sheet, though the offences under Sections 354 and 355 were canvassed in Annexure-1 F.I.R. Annexure-2 final report is now pending before the Judicial First Class Magistrate Court-I, Peerumade, as C.C.No.50/2024. The petitioner/ accused seeks quashment of the entire proceedings in Annexure-1 Crime, as also, all further proceedings therefrom. 2. Heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent/defacto complainant and the learned Public Prosecutor. Perused the records. 3. Learned counsel for the petitioner submits that one Noushad had trespassed into petitioner's property and Crl.M.C.No. 7195 of 2024 ..3.. 2025:KER:24836 constructed some toilets therein. A complaint in this regard was preferred before the Health Minister, as Annexure-4. Further complaints in the form of Annexure-3 to 7 were preferred before various authorities. Ultimately, by virtue of Annexure-8, the patta in favour of said Noushad was cancelled. Infuriated by the same, the instant crime has been foisted against the petitioner by the defacto complainant, who is an employee under the said Noushad. Noushad is running a hotel. The petitioner/ accused was summoned for a compromise talk by the said Noushad and others. However, according to the learned counsel, he was brutally manhandled and he was admitted in the hospital. Nevertheless, no case was registered by the Police against the said Noushad and others. In such circumstances, he filed a complaint before the Judicial First Class Magistrate Court-I, Peerumade. The same was forwarded to the jurisdictional Police, and a crime was registered, marked Annexure-10. The offences alleged in Annexure-10 are under Sections 143, 144, 147, 294(b), 323, 324, 506 and 149 of the Penal Code. Final report has Crl.M.C.No. 7195 of 2024 ..4.. 2025:KER:24836 already been filed and the same is now pending as C.C.No.166/2023 before the above-referred Judicial First Class Magistrate Court-I, Peerumade, where the case against the petitioner herein, as an accused, namely C.C.No.50/2024, is also pending. After the registration of Annexure-10 crime, Annexure-1 crime was foisted, which was also registered pursuant to a private complaint preferred by the defacto complainant, the employee of the said Noushad. Learned counsel would point out that the same was registered after four months from the alleged date of incident. The witnesses in the said cases are all employees of the said Noushad. Learned counsel would invite this Court's attention to the statement of the defacto complainant, which refers to the fact that the petitioner/accused ran away from the place of occurrence, which is an impossibility in itself. Similar statements have been given by other witnesses to the effect that the petitioner/accused ran away. Inviting this Court's attention to Annexure-9 medical report, learned counsel would submit that the petitioner/accused had undergone a Crl.M.C.No. 7195 of 2024 ..5.. 2025:KER:24836 Conversion Arthroplasty on 14.10.2020, by which procedure his right hip was replaced. According to the learned counsel, such a person cannot run, as the witnesses seek to allege. Learned counsel then invited the attention of this Court to the medical certificate, forming part of the final report, whereby no external injury is noted at the time of examination, which finding of the doctor is contrary to the claim made by the defacto complainant in the F.I.S. According to the learned counsel, the petitioner, who is aged more than 70, has been unnecessarily dragged into this litigation as a counterblast to the crime registered vide Annexure-10. The petitioner accordingly seeks quashment. 4. This application was seriously opposed by the learned counsel for the 2nd respondent/defacto complainant. Learned counsel would submit that, in Annexure-10 private complaint, the date of occurrence is 06.03.2023. However, the wound certificate is dated 08.03.2023. According to the learned counsel, the wound certificate is obtained, Crl.M.C.No. 7195 of 2024 ..6.. 2025:KER:24836 upon knowing that the defacto complainant herein had already preferred a complaint against the petitioner/ accused in Annexure-1 crime. Learned counsel would also point out that all the arguments raised by the learned counsel for the petitioner are based on facts, which require evidence to be adduced before the trial court; and that the same cannot be considered, or for that matter, no quashment can be based on such factual premise in exercise of the powers under Section 482 Cr.P.C. Learned counsel relied upon the judgment of the Hon'ble Supreme Court in this regard in Amit Kapoor v. Ramesh Chander [2012 (4) KLT SN 109 (C.No.98) SC]. 5. This application was seriously opposed by the learned Public Prosecutor, as well. 6. Having heard the learned counsel appearing for the respective parties, this Court finds little merit in the instant Criminal Miscellaneous Case. As rightly canvassed by the learned counsel for the 2nd respondent, all the arguments advanced before this Court are based on factual Crl.M.C.No. 7195 of 2024 ..7.. 2025:KER:24836 parameters. This Court may recall that the first point canvassed is with respect to a delay of four months. It is one thing to say that unexplained delay will seriously impact the merits of a criminal case. However, it is for the trial court to ascertain whether the delay is explained or not. Needless to say that, an opportunity in this regard has to be given to the defacto complainant/prosecution. The second aspect canvassed is that there is no external injury to the defacto complainant, contrary to her claim in the private complaint. This, again, is a matter for evidence, to be decided by the trial court. The question as to whether this is a counterblast to Annexure-10 crime, is also a matter for the trial court to decide. As it is well settled, quashment under Section 482 Cr.P.C. is an extraordinary remedy, to be resorted to in cases where the offences sought to be canvassed are not made out, even if the entire prosecution version is presumed to be true, or in a case where the court is fully convinced that the criminal case launched is nothing, but shear abuse of Crl.M.C.No. 7195 of 2024 ..8.. 2025:KER:24836 process. This Court cannot fit the instant facts to any of the two propositions above-referred. Reliance has been placed on Amit Kapoor (supra) rightly by the learned counsel for the 2nd respondent. It was held by the Hon'ble Supreme Court that the Court cannot examine the facts, evidence, and materials on record to determine whether there exists sufficient material, based upon which the prosecution case will end up in a conviction. The court is concerned primarily with an allegation, taken as a whole in the matter, of constituting the offence alleged. It was also held by the Supreme Court that it is neither necessary, nor called upon to hold an enquiry or to appreciate the evidence collected by the investigating agency, to find out whether it is a case of acquittal or conviction. Such an enquiry is not contemplated at all in exercise of the powers under Section 482, when a party to a criminal case seeks quashment. 7. Learned counsel would finally submit that the crime was registered under Sections 354 and 355 along with Crl.M.C.No. 7195 of 2024 ..9.. 2025:KER:24836 Section 323 of the Penal Code initially, as could be seen from Annexure-1 F.I.R. However, based on a complaint preferred by the petitioner before the District Police Chief, the offences under Sections 354 and 355 has been deleted as the same is not made out, and presently the solitary offence is one under Section 323. From that fact itself, it is clear that the case in question is nothing, but one foisted falsely against the petitioner/accused, is one final argument raised. 8. This Court cannot express any opinion in respect of that and the possibility, if any, of the factual proposition canvassed by the petitioner is to be thrashed out in evidence before the trial court, after eliciting necessary answers in the cross-examination. This Court cannot prejudge that, on account of the deletion of the offence under Sections 354 and 355, the allegations constituting the offence under Section 323 is also false and fictitious. Crl.M.C.No. 7195 of 2024 ..10.. 2025:KER:24836 9. In view of the fact that the quashment is essentially sought for based on attending facts and circumstances, this Court finds little merit in the instant Crl.M.C. The quashment sought for cannot be allowed. Accordingly, the Criminal Miscellaneous Case will stand dismissed. The matter will be decided by the trial court in accordance with law, untramelled by any of the observations contained in this Order. The Criminal Miscellaneous Case is dismissed as above. Sd/- C. JAYACHANDRAN JUDGE TR Crl.M.C.No. 7195 of 2024 ..11.. 2025:KER:24836 APPENDIX OF CRL.MC 7195/2024 PETITIONER ANNEXURES Annexure 1 THE CERTIFIED COPY OF THE FIR IN CRIME NO. 815/2023 OF PEERMADE POLICE STATION, DATED 21/09/2023 Annexure 2 THE CERTIFIED COPY OF THE CHARGE SHEET IN C.C. NO. 50/2024 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT I, PEERMADE IN CRIME NO. 815/2023 OF PEERMADE POLICE STATION Annexure 3 TRUE COPY OF THE COMPLAINT DATED 09/05/2019 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM Annexure 4 TRUE COPY OF THE COMPLAINT DATED 28/01/2020 SUBMITTED BY THE PETITIONER BEFORE THE HEALTH MINISTER, GOVERNMENT OF KERALA Annexure 5 TRUE COPY OF THE COMPLAINT DATED 28/01/2020 SUBMITTED BY THE PETITIONER BEFORE THE HON. CHIEF MINISTER OF KERALA Annexure 6 TRUE COPY OF THE COMPLAINT DATED 04/12/2023 SUBMITTED BY THE PETITIONER BEFORE THE HON. CHIEF MINISTER OF KERALA Annexure 7 TRUE COPY OF THE PHOTOGRAPHS EVIDENCING THE IIIEGAL CONSTRUCTION OF TOILETS BY THE SAID NOUSHAD Annexure 8 TRUE COPY OF THE PROCEEDINGS BEARING NO. 4874/23 DATED 13/02/2024 ISSUED BY THE TAHSILDAR, PEERMADE, CANCELLING THE PATTA ASSIGNED AS PER LA NO. 60/95 Crl.M.C.No. 7195 of 2024 ..12.. 2025:KER:24836 AND LA NO. 47/92 Annexure 9 TRUE COPY OF THE MEDICAL REPORT ISSUED BY ROTHMAN ORTHOPEADICS TO THE PETITIONER DATED 10/03/2023 Annexure 10 TRUE COPY OF THE FIR IN CRIME NO. 386/2023 DATED 11/05/2023 OF PEERMADE POLICE STATION Annexure 11 TRUE COPY OF THE CHARGE SHEET IN CC NO. 166/ 2023 DATED 02/06/2023 IN CRIME NO. 386/2023 OF PEERMADE POLICE STATION OF THE JFCM-I , PEERMADE Annexure A13 A TRUE COPY OF THE X-RAY EVIDENCING THE FACT THAT THE APPLICANT HAD UNDERGONE HIP REPLACEMENT SURGERY Annexure A14 A TRUE COPY OF THE MEDICAL REPORT DATED 28/11/2023 ISSUED BY THE JEFFERSON INTERNAL MEDICINE SOUTHAMPTON, USA Annexure A15 A TRUE COPY OF THE COMPLAINT DATED 9/5/2019 SUBMITTED BY THE APPLICANT ALONG WITH HIS WIFE, NAMELY, SUSAN JOHN BEFORE THE DIRECTOR GENERAL OF POLICE Annexure 16 TRUE COPY OF THE TREATMENT REPORT OF THE APPLICANT DATED 28/11/2023 ISSUED BY THE JEFFERSON HEALTH Annexure 17 TRUE COPY OF THE UNLOCKED PROGRESS NOTE DATED 28/11/2023 Annexure 18 TRUE COPY OF THE OP NOTE SIGNED BY SCOT A. BROWN DATED 19/10/2020 ISSUED JEFFERSON HEALTH Annexure A19 TRUE COPY OF THE DISCHARGE SUMMARY DATED 4/3/2020 ISSUED BY THE CARITAS Crl.M.C.No. 7195 of 2024 ..13.. 2025:KER:24836 HOSPITAL, KOTTAYAM Annexure A20 TRUE COPY OF THE X-RAY OF THE APPLICANT ISSUED FROM CARITAS HOSPITAL, KOTTAYAM EVIDENCING THE INJURY SUSTAINED BY THE APPLICANT IN HIS RIGHT HIP