Fr. Tomcy Thomas vs State Of Kerala & Ors.

Fr. Tomcy Thomas, the third accused in C.C.No.1211/2013 on the files of the Judicial First Class Magistrate Court-I, Harippad, has filed this criminal miscellaneous case under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking the following reliefs:

Heard the learned counsel for the petitioner/3^rd accused and the learned Public Prosecutor in detail.

Here, the prosecution alleges commission of offences punishable under Sections 417, 419, 420, 465, 468, 471, 201 and 212 of the Indian Penal Code (hereinafter referred to as ‘IPC’) by accused Nos.1 to 3. The allegation against the first accused is that she impersonated the 2^nd witness in this case and used the enrollment certificate of the 2^nd witness, bearing No. K/1177/2018, by forging an enrollment certificate with a photocopy of the same showing her name and used the same as genuine, and got membership in Bar Association, Alappuzha. Thereafter, she contested in the election to the Executive Committee of the Association and served as member from 30.03.2019 to 15.07.2021, and practiced in various courts in Alappuzha and she was appointed as Advocate Commissioner in various cases treating her as an Advocate. Later, it was revealed that she had not passed LL.B and the certificate of enrollment produced by her before the Bar Association was a forged one. The specific allegation against accused Nos.2 and 3 is that, the first accused absconded for a period of 21 months and stayed at Nirmala Inter College, Mithaura Bazar Hostel, Maharajganj, Uttar Pradesh and accused Nos.2 and 3 helped her to hide in the said place. Accordingly, accused Nos.2 and 3 are alleged to have committed offence punishable under Section 212 of the IPC.

It is pointed out by the learned counsel for the petitioner/3^rd accused that the petitioner is innocent and in the final report, no specific allegation to establish commission of offence under Section 212 of the IPC by the 3^rd accused could be found prima facie. It is further submitted that no prosecution materials available to find commission of offence under section 212 of IPC by the petitioner/3^rd accused.

Whereas the learned Public Prosecutor read out the statement given by CW23, Father Jose C.A. S/o.Antony, who held the post of Superior of Nirmalasramam, disclosing that the first accused, by impersonating herself as ‘Catherine’, had stayed there after suppressing her real name and accordingly, it is submitted that the offence under section 212 of IPC, alleged against accused Nos.2 and 3, could be found prima facie from the statement of CW23 and in such view of the matter, quashment prayer is liable to fail.

Before adverting to the rival contentions, it is necessary to extract Section 212 of the IPC, which reads as follows:

On going through the statement of CW23, it could be gathered that a lady by name ‘Catherine’ stayed at the hostel under the care of Fr.Tomcy Thomas (the petitioner/3^rd accused. CW23 stated that he did not know the real name of the said lady. She had resided there for a particular period. His version further is that, the lady resided therein for a long period and the lady was permitted to reside therein since it was informed by Fr. Tomcy (the petitioner/3^rd accused) that she was the sister of Fr.Sandeep, the 2^nd accused. Later, upon watching Asianet News, he saw the photograph of the lady who resided at the hostel, and understood that she was the lady who produced forged certificate, obtained a membership in Bar association and also got elected to the Executive Committee. He identified the first accused before the police while giving statement. Tracing the ingredients to bring home an offence under Section 212 of IPC, the same would include harbouring or concealing a person whom the accused knows or has reason to believe to be an offender, with intention of screening the offender from legal punishment. Thus it appears that the petitioner herein, in connivance with the 2^nd accused, harboured and concealed the first accused, knowing that she is an offender, with intention to screen her from legal punishment, which is an offence punishable under Section 212 of IPC. Thus, prima facie the offence under Section 212 of IPC is made out and in such a case, quashment prayer is liable to fail.

In the result, this petition stands dismissed.

Interim order of stay stands vacated.

Registry is directed to forward a copy of this order to the jurisdictional court for information and further steps.

Annexure A-1 A TRUE COPY OF THE FIR IN CRIME NO. 0474/2021 DATED 18.07.2021 OF ALAPPUZHA NORTH POLICE STATION

Annexure A-2 CERTIFIED COPY OF THE FINAL REPORT NO.5314/2023 DATED 14.07.2023 ALONG WITH WITNESS STATEMENTS AND OTHER RECORDS ATTACHED