K.Haripal, J
1. Petitioner, Rev.Dr.P.E Thomas, aged 75 years, a native of Ulloor in Medical College Post Office, Thiruvananthapuram is the accused in C.C.No.
687/2020 pending before the Additional Chief Judicial Magistrate’s Court, Thiruvananthapuram, which is based on the final report in Crime No.
2122/2019 of Medical College police station. The petitioner contends that he is having a savings bank account in State Bank of India, Medical College,
Thiruvananthapuram. On 09.09.2019, he had a balance amount of Rs.21,47,199/- in credit. That day he had gone to the bank for remitting an amount
of Rs.14,935/- in the SB account. Thus that day the total amount in credit was Rs.21,62,134/-. According to the petitioner, that day, after depositing
the cash in the counter, he was waiting at the area meant for customers for getting back the passbook. At that time he was reading Mathrubhoomi
daily lying on the sofa. His hand touched on a mobile phone that was lying on the side of the newspaper. He took the newspaper and gone through it.
Within a short time, he got back the bank passbook after making entries and he went out of the bank. He did not even look into the mobile phone,
which was lying on the sofa. There were other customers also waiting for transactions at the counter of the bank and he believed that the mobile
phone was kept by some of the customers. After finishing the transaction, when he went to the side of the road, one of the bank employees with the
help of others blocked him and took him to the bank counter. His hands, bag, pockets of the pant and shirt were examined; he was asked to give back
the mobile phone. The bank employees could not find any mobile phone from him. He repeatedly told them that he has not taken the mobile phone. He
told them that he is an honest customer of the bank. But ignoring all bonafide reply of the petitioner, they informed the Medical College police, stating
that he had stolen the mobile phone. The police came there immediately, took the petitioner to the police station, questioned him and conducted body
search. But they could not find out the mobile phone. On 09.09.2019 at 02:00 p.m, he was arrested and put in the lock up and on 10.09.2019 at 06:45
p.m, he was produced before the residence of the Magistrate and was remanded. Later the charge sheet was laid before the Additional Chief Judicial
Magistrate's Court.
2. According to the petitioner, he was working in the Finance department under the Government of India and retired as Additional Secretary on
voluntary retirement, opting CPF. After retirement, he is living peacefully and decently without disturbing anybody. Occasionally he is working as
Booth Level Officer under the Election Commission of India. He is an ordained pastor in the church of North India, New Delhi. He is also under
treatment in Government Medical College Hospital, Thiruvananthapuram. Earlier he had moved this Court with Crl.M.C.No.7216/2019 for quashing
the proceedings, but the Court directed the police to file the final report within a period of 4-5 months. Thus the final report has been filed. According
to the petitioner, he is totally innocent, he has been falsely implicated in the crime. No recovery has been effected from him. The C.C.T.V footage in
the alleged place of occurrence does not show that the petitioner was carrying the alleged mobile phone in the hands or any where in the body or in his
dress. The C.C.T.V footage was wrongly created by the bank employees with the help of police in order to harass the petitioner. He does not have
criminal antecedents, he is a senior citizen having many health issues and is leading a peaceful life. He is under medical treatment for his illness in
Medical College Hospital. He is a genuine bank customer. On that day, he had gone there for genuine bank transaction. On these considerations,
proceedings against him before the Chief Judicial Magistrate's Court are sough to be quashed.
3. I heard the petitioner who appeared in person and also the learned Senior Public Prosecutor.
4. The petitioner also filed an argument note. According to him, he is a former Secretary to Government of India taken voluntary retirement and now
working as a pastor in the Church of North India and he is a respectable person in the community. Matters raised in the statement of facts have been
repeated in the argument note filed by him.
5. The petitioner wants to quash the proceedings on the ground that he is innocent. But the charge sheet produced as Annexure A2 implicates him and
offence under Section 379 of the IPC is alleged against him. Going by the charge sheet, on 09.09.2019 at 12:00 noon, the ‘Apple iPhone 6S’
worth Rs.45,000/-, which belonged to CW1 was dishonestly removed by him at the customer sitting area of the SBI, Medical College branch. In the
report attached to the charge sheet, it is stated that on getting information about the commission of the crime, Crime 2122/2019 was registered under
Section 379 of the IPC; on getting information that the bank officials and other natives of the area had detained the accused at the bank premises, the
police reached the bank, removed the accused from the place of occurrence; CW1 and the others had identified him and that he was arrested on
09.09.2019 at 18:45 hours and then he was produced before court and was remanded to judicial custody. It is further stated that on giving notice to the
Manager, SBI, CCTV visuals were given to the police, which were produced before court along with certificate under Section 65 (b) (4)(c) of the
Indian Evidence Act. A mahazar was also prepared by the seventh witness looking at the C.C.T.V footage. Even though the accused was taken into
judicial custody on 23.09.2019 for a day for recovering the stolen item, in spite of interrogating him in custody, he did not co-operate with the
investigation and the phone could not be recovered. Thus it also stated that apart from this crime, he had one another crime in Thiruvananthapuram
Railway Police Station, Crime No.301/2014, under Section 511 of 379 of the IPC.
6. Now, he has sought for quashing the proceedings under Section 482 of the Cr.P.C. The specific allegation of the prosecution is that while CW1, the
owner of the stolen mobile phone, had gone to the counter of the bank for collecting money after keeping the mobile phone at the sofa set, the accused
had dishonestly removed the same and immediately gone out of the bank. After a short while he returned and at that time the loss of mobile phone
was noticed by the owner. She alerted the bank officials and then C.C.T.V visuals were checked and she had seen an old man removing the mobile
phone from the place where it was kept and the petitioner was identified as the person who had dishonestly thieved the same. Thus he was detained
at the place, police was alerted and the police removed him and later he was arrested after verifying the C.C.T.V footage. Even after taking him in to
police custody, recovery could not be effected since he did not co-operate with the investigation.
7. The learned Public Prosecutor has submitted that C.C.T.V footages clearly indicate that immediately after thieving the mobile phone, the accused
had gone out of the bank and he returned in a short while. At that time, the loss of the mobile phone was noticed by the owner and that was how
police was informed and in the presence of the police bank officials verified the C.C.T.V footage and found the petitioner as the thief. But when his
body was searched, it could not be recovered. As stated earlier, even after the arrest and taking him in police custody, the phone could not be
recovered. All the same, relying on C.C.T.V footage, the prosecution asserts that the petitioner is the thief. This being the evidence, this Court cannot
hold that the petitioner is totally innocent and that he has been falsely implicated.
8. It is essentially a question of fact whether the petitioner had thieved the mobile phone and had removed the same from the place. The previous
statements of witnesses also indicate that the petitioner was present there, immediately after the CW1 had moved to the counter after leaving the
mobile phone at the sofa, he had moved out and had returned after a while. Relying on the C.C.T.V visuals, witnesses have stated that he can be seen
removing the mobile phone from the place. But the petitioner wanted to convince the court that he was there and even though he had seen the mobile
phone at the sofa set besides his seat, he did not touch it, that he was reading newspaper, immediately after getting back his pass book, he returned
from the bank and thereafter, the bank officials took him back from the side of the road, that he is totally innocent.
9. This Court also wishes that the petitioner, a septugenerian, calling himself a former Additional Secretary should be innocent. But there are prima
facie materials, as spoken to by the witnesses after verifying the C.C.T.V visuals, that he was found thieving the mobile phone, despite the fact that it
could not be recovered from his possession.
10. Whether the mobile phone was thieved by him or not can be decided only after taking evidence. That depends upon the credibility of the witnesses
who had seen the petitioner at the place of occurrence and also the reliability and admissibility of the C.C.T.V visuals, which have already been taken
into possession and produced before Court along with necessary certificates under the Evidence Act.
11. The disputed question of fact has to be analysed by the trial court only. This Court sitting in this jurisdiction can neither embark upon an enquiry
nor conduct a parallel trial and hold that the petitioner is innocent. May be the petitioner is a retired Additional Secretary from Government of India
Service, but if the evidence and materials are against him, such profiles cannot help him. Similarly, the fact that he is an old man, that he is ailing from
various illnesses and he is under treatment in Medical College etc., are not mitigating circumstances to quash the proceedings at the threshold by this
Court. He will have to undergo trial and therefore, the prayer for quashing the proceedings is lacking merits and is liable to be dismissed. Dismissed.
