Ashna Thomas v. State of Kerala and Sophy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **Crl.MC.No.3633 OF 2015** **AGAINST THE ORDER/JUDGMENT IN MC 29/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA** **CRIME NO.1064/2014 OF Piravam Police Station , Ernakulam** ## **PETITIONER/S:** **ASHNA THOMAS AGED 26 YEARS D/O.V.V. THOMAS, VELLUKATTIL, PAZHOOR KARA, PIRAVOM - 686 664.** **BY ADVS. SRI.PAUL K.VARGHESE SMT.A.A.GEETHA** ## **RESPONDENT/S:** **1 STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, ERNAKULAM DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 SOPHY D/O. NIZA, AISHA BHAVAN, VELLIMON EAST, KUNDARA, KOLLAM - 691 501** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3633 OF 2015** **2** ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = Crl.M.C. No.3633 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 15[th] day of December, 2020 ## **O R D E R** The prayers in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C. are as follows : _“(i) Call for the records leading for Annexure II charge set aside the same. (ii) Issue such other order or direction as may be necessary in the facts and circumstances of the case.”_ 2. Heard Sri.Paul K.Varghese, learned counsel appearing for the petitioner/sole accused and Sri.Santhosh Peter, learned Public Prosecutor appearing for R1-State of Kerala. Though notice has been duly served on contesting respondent No.2 (lady defacto complainant) as can be seen from the endorsement made by the Registry, she has not entered appearance in this case. 3. The petitioner herein was initially arrayed as accused No.3 among the three accused in the impugned Annexure-I FIR in crime No.1064/2014 of Piravom Police Station, Ernakulam district for offences punishable under Secs. 341, 323, 294(b) and 34 of the IPC on the basis of the First Information statement given by the 2[nd] respondent-lady defacto complainant on 17.10.2014 in respect of the alleged incident which **Crl.MC.No.3633 OF 2015** **3** happened on 15.10.2014 at 12.15 p.m. The police after investigation has deleted the accused Nos. 2 and 3 from the accused array and has filed the impugned Anneuxre-II final report/charge sheet on 18.11.2014 in the said crime No.1064/2014 of Piravom Police Station, in which the petitioner herein has been arrayed as the sole accused for offences punishable under Secs.341 and 323 of the IPC. The learned Magistrate has taken cognizance of the said offences and the case is now pending as calendar case CC No.1458/2014 on the file of the Judicial First Class Magistrate Court, Piravom. It is this proceedings at Annexure-I final report/charge sheet in the said Crime No.1064/2014 of Piravom Police Station, which has now led to the pendency of calendar case CC No.1458/2014 on the file of the Judicial First Class Magistrate, Piravom that is under challenge in this petition. 4. The brief of the prosecution case in the impugned criminal proceedings is to the effect that the 2[nd] respondent- lady defacto complainant had married one Sri.Sunil, who is the step brother of the petitioner herein and that the 2[nd] respondent’s husband Sri.Sunil had died on 12.10.2014 and that some altercation has taken place between the 2[nd] respondent and the accused persons, at the time of the funeral of Sri.Sunil and that on account of that animosity, the accused persons with the intention to cause hurt to the 2[nd] respondent on 15.10.2014 at about 12.15 p.m., while sitting in the sit out of the residence, and when the 2[nd] **Crl.MC.No.3633 OF 2015** **4** respondent had come there, had caught hold of her and illegally confined her and that the petitioner (A1) had caught 2[nd] respondent by her hair and hit her on the wall and had assaulted her and had used vulgar and abusive words to her etc. 5. It appears that the 2[nd] respondent had married earlier twice and after the dissolution of the said marital relationships, she has subsequently married Sri.Sunil. The said Sunil’s mother had died and his father, one Sri.Thomas had remarried A2(Usha) and that the petitioner herein (A1) is the daughter born in the said marital relationship between Thomas and A2Usha. The petitioner herein (Sophy) is thus the step sister of Sri.Sunil. The marriage of Sri.Sunil with the 2[nd] respondent was a inter religious marriage. Sri.Sunil had died on 12.10.2014 and the prosecution case is that some altercation has taken place between the accused persons on the one hand and the 2[nd] respondent on the other hand at the time of funeral service of Sri.Sunil. On account of this animosity, that the alleged incidents have taken place in the residence of A1 and A2, when the 2[nd] respondent had come there on 15.10.2014 at about 12.15 p.m. The police after investigation has found that the allegations raised as against A2 and A3 in Annexure-I FIR are completely false and untrue and has also found that some of the allegations regarding the commission of offence as per Sec. 294(b) of the IPC are also factually false and wrong. Thus, the police after completion of the investigation has filed the impugned Annexure-II final **Crl.MC.No.3633 OF 2015** **5** report/charge sheet in the abovesaid FIR, whereby accused Nos. 2 and 3 have been deleted from the accused array and the offence as per Sec. 294(b) has also been deleted and the sole accused therein now, is the petitioner herein (original A1) for offences punishable under Secs. 341 and 323 of the IPC. 6. The case of the petitioner is that the abovesaid incidents have not taken place as alleged by the 2[nd] respondent and that the petitioner has been falsely implicated by the 2[nd] respondent on account of her attempt to get more money from petitioner’s parents, after the death of Sri.Sunil. Further that, the 2[nd] respondent has filed a series of cases as against her 2[nd] husband and family members etc. as well as against the parents of the petitioner and Sri.Sunil and that it is only to intimidate and blackmail the petitioner that the abovesaid false allegations have been made. 7. It is seen that Annexure-III is the accident register cum wound certificate issued in this case on 15.10.2014 at about 4 p.m. The said medical certificate would show that no external injury is seen sustained over abdomen or body of the 2[nd] respondent, though the specific allegations in Annexure-I FIR are to the effect that the petitioner had kicked on the abdomen of the 2[nd] respondent. Further, the doctor has clearly certified in Annexure-III that the condition of the 2[nd] respondent after discharge is found to be good. 8. From the pleadings and materials on record, it is seen that the **Crl.MC.No.3633 OF 2015** **6** 2[nd] respondent has initiated a series of litigative proceedings as against her erstwhile 2[nd] husband and his parents. Annexure-V is the proceedings initiated by the 2[nd] respondent under the Domestic Violence Act against her erstwhile 2[nd] husband one Sri.Saneer as well as the said 2[nd] husband’s mother and brother etc. before the Judicial First Class Magistrate Court, Alappuzha in the year 2011. Annexure-VII is a private criminal complaint filed in the year 2010. 9. The petitioner would point out that later, the 2[nd] respondent after getting money from her erstwhile 2[nd] husband, Sri.Saneer has settled the domestic violence case as can be seen from Annexure-IX order. Further, it is pointed out that immediately after the death of petitioner’s brother Sri.Sunil, the 2[nd] respondent has filed Annexure-XI O.P.No. 536/2014 before the Family Court, Muvattupuzha raising claims or realization of money and has also filed Annexure-XIII proceedings under Sec.12 of the Domestic Violence Act against the petitioner’s father and another person, before the Judicial First Class Magistrate Court, Piravom on 5.11.2014 etc. The petitioner would point out that it is only on account of that, the 2[nd] respondent with the objective of extracting money from the petitioner’s parents has raised the abovesaid false allegations at Anneuxure-I and II in order to compel the petitioner’s parents to compromise with her unlawful demands for money after the death of Sri.Sunil etc. **Crl.MC.No.3633 OF 2015** **7** 10. After hearing both sides, it is seen that the allegations raised as against A2 and A3 in Annexure-I FIR is found to be completely false and untrue by the police themselves, after the completion of the investigation. Even the allegation of commission of offence under Sec.294(b) of the IPC has been found to be unreliable. The police has thus completed the investigation and has deleted A2 and A3 from the accused array as can be seen from Annexure-II final report/charge sheet. The allegations raised by the 2[nd] respondent that the petitioner has kicked on her abdomen etc. are also strongly belied by Annexure-III medical certificate issued by the Government Hospital concerned on 15.10.2014 at 4 p.m., which is immediately after the alleged incident. Therein it has been certified that no external injury has been seen over the abdomen or body of the 2[nd] respondent. Further, the doctor has certified that the 2[nd] respondent after discharge has been found to be in generally good condition. Even going by the prosecution case, it appears that certain altercations have been taken place between the accused persons and the 2[nd] respondent on 12.10.2014 at the time of the funeral service of Sri.Sunil. 11. The petitioner has made out a strong probable case that the allegations raised against her by the 2[nd] respondent, could be false or atleast that in view of the bad relation between the parties, the events would have happened not in the manner as suggested by the prosecution, but in some other manner. **Crl.MC.No.3633 OF 2015** **8** 12. It has been held by the Apex Court in the case _**Shakson Belthissor v. State of Kerala & another**_ reported in (2009) 14 SCC 466 that where a complaint is found to be vexatious or frivolous or oppressive, the power under Sec.482 Cr.P.C could befittingly exercised to quash such impugned criminal proceedings. In the case _**State of Orissa**_ _**through Kumar Raghvendra Singh & others v. Ganesh Chandra Jew**_ reported in (2004) 8 SCC 40, the Apex Court has held that the impugned criminal proceedings can be quashed where the complaint involves malafides. In the case _**Lambodaran Nair v. State of Kerala**_ reported in 2003 (1) KLT SN 115 Case No.83 (SC) it has been held by the Apex Court that the power under Sec.482 Cr.PC can be exercised where criminal proceedings were manifestly attended with malafides or to wreck personal vengeance. In the case _**Om Prakash v. State of Jharkhand**_ reported in (2012) 12 SCC 72, the Supreme Court has categorically held that if it appears to the trained judicial mind that continuance of a prosecution will lead to abuse of process of law or miscarriage of justice, the power under Sec.482 of Cr.P.C. must be exercised and the proceedings must be quashed. 13. Now, it is also pointed out by the learned counsel for the petitioner that the petitioner is now married and is employed abroad as a nurse. So also, it is pointed out that the 2[nd] respondent has again married after the death of Sri.Sunil, who is her 3[rd] husband and is now gainfully **Crl.MC.No.3633 OF 2015** **9** employed abroad. Taking note of the totality of the facts and circumstances of this case, this Court is of the considered view that the continuance of the impugned criminal proceedings is an abuse of the process of Court and it may inevitably lead to the acquittal of the accused. Therefore, it would amount to the mere wastage of the precious resources of the judicial organs of the State, prosecution machinery and the investigation agency. In that view of the matter, it is ordered that the impugned Annexure-II final report/charge sheet filed in crime No.1064/2014 of Piravom Police Station, which has now led to the pendency of calendar case, CC No. 1458/2014 on the file of the Judicial First Class Magistrate Court, Piravom as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 14. The petitioner will produce certified copies of this order before the investigating officer concerned and the Judicial First Class Magistrate Court, Piravom, who is dealing with CC No.1458/2014 for necessary information. With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS