Amrit Raj Baby v. State of Kerala and Renny Elizabeth Oommen

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946 CRL.M.C. NO. 7764 OF 2023** **CC NO.324 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST** **CLASS -I, MAVELIKKARA** **(CRIME NO.20/2023 OF Mavelikkara Police Station,** ## **Alappuzha)** ## **PETITIONER/ACCUSED:** **AMRIT RAJ BABY, AGED 39 YEARS S/O LATE.RAJAN.B.VARGHESE, MELETHIL HOUSE, THATTAYIL (P.O), PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN – 691525.** **BY Party-In-Person** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** - **2 RENNY ELIZABETH OOMMEN, AGED 34 YEARS, D/O OOMMEN PAUL, KOTTUVILAYIL HOUSE, ERAMATHOOR (P.O), THRIPPERUNTHURA VILLAGE, MAVELIKARA TALUK, ALLEPPY DISTRICT, PIN – 689622.** **R1 BY SMT.SEENA C., PUBLIC PROSECUTOR R2 BY JOHN K GEORGE R2 BY M.A.PRABHU** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL** **HEARING ON 06.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 Crl.M.C.No.7764 of 2023 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Crl.M.C.No.7764 of 2023** **----------------------------------------------------------Dated this the 6[th] day of June, 2024** ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973. 2. The petitioner is the accused in C.C.No.324 of 2023 on the files of the Judicial Magistrate of the First Class-I, Mavelikkara. The final report was filed alleging that the petitioner committed the offence punishable under Sections 341 and 294(b) of the Indian Penal Code, 1860 (IPC). 3. Heard the petitioner in person, the learned Public Prosecutor and the learned counsel for the 2[nd] respondent. 4. Crime No.20 of 2023 of Mavelikkara Police Station was registered on the basis of the F.I.statement given by the 2[nd] respondent. On the basis of the allegation therein, the crime was registered for the offences under Sections 323, 341, 354, 294(b) and 325 of the IPC. After investigation, final report was filed stating that the offences revealed were under 3 Crl.M.C.No.7764 of 2023 Sections 341 and 294(b) of the IPC. The petitioner would contend that even accepting all the allegations set forth in the final report, a copy of which is Annexure A2, no offence is made out, and therefore, the proceedings in C.C.No.324 of 2023 is an abuse of the process of law. The petitioner further would contend that the circumstances in which the crime was registered and final report filed stem out from _mala fides_ . When the prosecution is thus vitiated, the proceedings are liable to be quashed. 5. The petitioner would submit that he was entitled to get custody of his children from 2.00 p.m. till 4.00 p.m. on 07.01.2023 in terms of the order of the court in a guardian and ward proceedings. When he was given custody by the 2[nd] respondent, who is his wife, he took the children to the car and that time he was restrained by the 2[nd] respondent. The petitioner only had tried to exercise his right in terms of the order of the court to have custody of the children, and therefore, no offence of wrongful restraint, even if he tried to take the children forcibly along with him, would be attracted. 4 Crl.M.C.No.7764 of 2023 The petitioner places reliance on **M.S.Madhanagopal and others v. K.Lalitha [2022 (6) KLT SN 7 (Case No.5)].** Insofar as the offence under Section 294(b) of the IPC is concerned, the submission of the petitioner is that the words said to have been uttered by the petitioner would not constitute an offence and therefore no prosecution for that offence is also legally possible. In that regard, the learned counsel places reliance on **Sangeetha Lakshmana v. State of Kerala [2008(1) KHC 812]** . The petitioner by placing reliance on **Reshma Bano v. State of U.P. and others [(2008) 5 SCC 791]** it was urged that the prosecution sprang out of malicious intent on the part of the 2[nd] respondent and her parents, and therefore, it is liable to be quashed. 6. The learned counsel for the 2[nd] respondent would submit that on a reading of Annexure A1 F.I.statement, it is quite evident that the offences the petitioner had committed are not merely under Sections 341 and 294(b) of the IPC, but grievous hurt also. The investigating agency purposefully 5 Crl.M.C.No.7764 of 2023 distorted the facts and suppressed the medical record with a view to aid the petitioner and therefore the 2[nd] respondent had filed a petition seeking further investigation in the matter, which is now pending consideration of the trial court. At any rate, the allegations in the final report and the materials produced along with it make out the offences as alleged therein, and therefore, there is no reason to quash the proceedings. The said submission is supported by the learned Public Prosecutor. However, the learned Public Prosecutor would point out that the investigating officer enquired into the allegations as to the grievous hurt and found that it was not on account of any voluntary act by the petitioner. As a result, such an offence was deleted. 7. A criminal proceedings can be quashed if the final report and the materials in support thereof do not constitute a criminal offence. Apart from such a contention, the petitioner has an allegation that the case was initiated with _mala fides_ and to wreak vengeance. The fact that there exists matrimonial dispute between the petitioner and the 2[nd] 6 Crl.M.C.No.7764 of 2023 respondent is undisputed. The incident itself occurred in relation to the dispute regarding custody of their children. So, the possibility of foisting a case as well as committing an offence by the petitioner are equally poised. Whether or not the offence as alleged in the final report was committed is a matter to be decided on the basis of the final report and the materials produced therewith. On a perusal and consideration of the documents, no offence is made out. The obvious result should be the quashment. 8. The assertions of the 2[nd] respondent and her parents may be said to be biased. But when the statement of the independent witnesses recorded by the investigating officer under Section 161 of the Code, which form a part of the final report, the facts recited therein cannot be ignored. Witness Nos.4 and 5 are the independent occurrence witnesses. On a perusal of their statements, the ingredients of the offence, atleast for a wrongful restraint, are very much ## revealed. The relevant statements are extracted below: > "നനിനന വവീടനിലലല ഇതത പപപോനല കലപപോയമനിട ഒരപോളളുണ്ടപലപോ എനലല പറഞല നകപോണ്ടത ഫപോദർ മകളളുല നകപോചളുമക്കളളുമപോയനി കപോറനിൽ കയറപോൻ ശശ്രമനിചപപപോൾ അങ്ങനന 7 Crl.M.C.No.7764 of 2023 പപപോകപോൻ പറപോതനിനലടപോ പടനി എനത അസഭഭല പറഞല നകപോണ്ടത അയപോൾ ഫപോദനറയലല കകമലപനപോടളു നവീടനിനകപോണ്ടല തടഞല. xx xx അതനിനല പശ്രഷല ഫപോദറലല മകളളുല കകൂടനി കലഞലങ്ങനളയലല നകപോണ്ടത കപോറനിൽ കയറനിയ സമയല കപോറനിൽ കയറനി പപപോകപോനപോയനി കപോറത മലപനപോനടടലതപപപോൾ ഭർതപോവത കപോറത തടയലകയലല പപപോലവീസനിനന വനിളനിചനിടളുണ്ടത, പപപോലവീസത വനനിടത പപപോയപോൽ മതനി എനത അവപരപോടല പറഞല.” ## 9. In **M.S.Madhanagopal** (supra) the Apex Court explained as to the ingredients of Section 341 of the Code, which are the following: - “(i) there was obstruction by the accused; - (ii) such obstruction prevented a person from proceeding in a direction to which he had a right to proceed; and - (iii) the accused caused such obstruction voluntarily. The obstructor must intend or know or would have reason to believe that the means adopted would cause obstruction to the complainant.” The acts done as reflected from the aforesaid statements, if actually committed, would satisfy the aforesaid requirements. Therefore, an offence under Section 341 of the IPC is _prima facie_ made out. 10. Going by the law laid down in **Sangeetha Lakshmana** (supra) it is doubtful whether the allegations set forth in the final report would make out an offence under Section 294(b) of the IPC. I found above that an offence under Section 8 Crl.M.C.No.7764 of 2023 341 of the IPC is made out _prima facie,_ and therefore, the proceedings are not liable to be quashed. In view of that the question whether or not an offence under Section 294(b) of the IPC would constitute is left open to be decided by the trial court. 11. In **Reshma Bano** (supra), the Apex Court laid down the illustrative situations where a criminal proceedings can be quashed. Clause (7) in the enumeration reads,- “(7) Where a criminal proceeding is manifestly attended with _mala fide_ and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 12. As stated, the petitioner and the 2[nd] respondent have been in loggerheads. The allegation of the petitioner that the 2[nd] respondent has _mala fide_ intention to cause inconvenience to the petitioner has substance in the light of the persisting disputes between them. But when the prosecution makes out a _prima facie_ case concerning commission of an offence and there is independent materials to substantiate the same, it cannot be said that the proceedings in C.C.No.324 of 2023 vitiated by _mala fides._ 9 Crl.M.C.No.7764 of 2023 Therefore, the proceedings in C.C.No.324 of 2023 is not liable to be quashed applying the aforesaid principle of law. 13. The learned counsel for the 2[nd] respondent pointed out that a protest complaint filed by the 2[nd] respondent is pending consideration of the trial court. In that regard, the petitioner submitted that the said petition was filed on 03.06.2024 and owing to the interim stay ordered by this Court, the trial court adjourned the matter to a future date. The reason for filing such a petition is that the investigating officer did not act legally and failed to furnish materials which would establish commission of the offence of grievous hurt. In the final report itself, it is stated that the 2[nd] respondent sustained a fracture of bone of one of her left fingers. The certificate in that regard was not produced and the Doctor, who treated her was not cited. When the investigating officer conducted enquiry into that matter and reached a conclusion, possibility of a further investigation in that matter is doubtful. That is, however, a matter to be decided by the trial court and therefore I leave that matter. 10 Crl.M.C.No.7764 of 2023 14. Accordingly, this petition is dismissed. However, directing the trial court to take a decision on the petition seeking further investigation in the light of the aforementioned observations within a period of three weeks from the date of receipt of a certified copy of this order. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 11 Crl.M.C.No.7764 of 2023 ## **APPENDIX OF CRL.MC 7764/2023** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**TRUE COPY OF THE FIR IN CRIME NO: 20 /**| ||**2023 OF MAVELIKARA POLICE STATION**| ||**DATED 08.01.2023.**| |**Annexure A2**|**TRUE COPY OF THE FINAL REPORT IN CRIME**| ||**NO: 20 / 2023 OF MAVELIKARA POLICE**| ||**STATION SUBMITTED DATED 12.04.2023**| |**Annexure A3**|**TRUE COPY OF THE JUDGMENT IN O.P (F.C)**| ||**277 / 2022 DATED 22.12.2022 OF THE**| ||**HIGH COURT OF KERALA**| |**Annexure A4**|**TRUE COPY OF THE JUDGMENT IN O.P (FC)**| ||**12 / 2024 DATED 16.01.2024 OF HIGH**| ||**COURT OF KERALA**|