ABDULLA C. H Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are the accused in CC 242/2009 on the file of Chief Judicial Magistrate, Kasaragod taken cognizance for the offences under S.451 and S.353 read with S.34 of Indian Penal Code and S.3(1) of PDPP Act on Annexure 23, final report submitted by the Sub Inspector of Police after investigation. Prosecution case is that on 18/09/2008 at 11 p.m, petitioners in furtherance of their common intention trespassed into the Port Trust Office, Kasaragod while Ayshabi, CW 2, the Office Assistant alone was there in the office. Second petitioner attempted to take photo, using his mobile phone, CW 2 affixing office seal in the passes being granted, for permitting transport of river sand and when she tried to obstruct the same, first petitioner by force took away the book and tore the same and caused obstruction to the discharge of official duty and thereby committed the offences. The case was registered under Annexure A14 FIR on 25/10/2008. Petitioners approached this Court to get anticipatory bail under S.438 of Code of Criminal Procedure. It was granted under Annexure 8 order. This petition is filed under S.482 of Code of Criminal Procedure to quash the final report and the cognizance taken or in the alternative to direct a fresh investigation by an impartial Investigating Officer.

(2.) Petitioners contended that the officials and employees of Kasaragod Port Office are aiding large scale sand mafias by receiving bribe and reports were published about the illegal sand mining from Mogral Puthoor and Shiriya river and petitioners have lodged several complaints before competent authorities to prevent the unauthorised illegal actions on the part of the officials and due to these reasons Sub Inspector of Police and the Port Conservator are nursing grievance against the petitioners and they hatched a conspiracy and registered the case. It is contended that as evidenced by Annexure A3 paper report, Kerala State Human Rights Commission had taken a case against the illegal sand mining and State Information Commissioner in an appeal filed by the petitioners against non - issuance of information sought for by the second petitioner, the third respondent was directed to provide the information sought by him levying a penalty of Rs.9250/-. On 18/09/2009 third respondent was not present in his office. On that day petitioners had gone to the Port Office to submit an application under the Rights to Information Act. Sukumaran one of the staff of the office tore the application form and put it in the waste basket and warned that they will lodge a Complaint alleging that petitioners trespassed in the office. Therefore petitioner sent Anneuxre A5 representation dated 20/09/2008 to the Chief Minister and it is much thereafter on 25/10/2008 after lapse of 36 days the FIR was registered and that itself shows that the case is foisted. Petitioners contended that Annexure A13 reply received by the counsel appearing for the petitioners on 20/11/2008 from the Sub Inspector of Police establish that there is no other case pending against the petitioners and hence continuation of the proceedings is only an abuse of process of the Court and it is to be quashed.

(3.) Learned counsel appearing for the petitioners and learned Public Prosecutor were heard.