Azar Rahman v. State of Kerala & WAFA WAHID

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941** ## **Crl.MC.No.4047 OF 2019(E)** **AGAINST THE ORDER/JUDGMENT IN CC 2264/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG** **CRIME NO.533/2017 OF Chandera Police Station , Kasargod** ## **PETITIONER/S:** **AZAR RAHMAN, AGED 31 YEARS S/O.ABDUL RAHMAN, RIVER VIEW, PALAKODE, KANNUR DISTRICT.** **BY ADV. SRI.B.PRAMOD** ## **RESPONDENT/S:** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 WAFA WAHID, D/O.ABDUL WAHID, BUNGLOW, THRIKARIPUR P.O., KASARAGOD- 671310.** ## **OTHER PRESENT:** ## **SRI.T.R.RNJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 4047 of 2019 ================== Dated this the 12[th] day of July, 2019 ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.III FIR in Crime No. 533/2017 of Chandera Police Station, which has been registered for offences punishable under Secs. 341, 354A(1)(i), 354D(1)(i) & (ii) of the I.P.C. on the basis of the FI statement given by the 2[nd] respondent lady defacto complainant on 17.8.2017 at about 8 p.m. in respect of the alleged incidents, which have taken place on 21.5.2016. Anx. II is the FIS in relation to Anx. III crime. The Police, after investigation has filed the impugned Anx. I final report/charge sheet in the said Crime No. 533/ 2017 of Chandera Police Station, which has now led to the pendency of Calendar Case, C.C.No. 2264/2017 on the file of the Judicial First Class Magistrate's Court-I, Hosdurg, Kasargod. The petitioner is seeking quashment of the abovesaid impugned criminal proceedings, which has now given rise to the abovesaid C.C.No. 2264/2017 on the file of the Judicial First Class Magistrate's Court-I, Hosdurg. As per the version given in Anx. II FIS, the petitioner herein, then aged 29 years, is the first cousin of the lady defacto complainant, then aged 24 Crl.M.C.4047/19 - : 3 :- years. (The petitioner is the son of the lady defacto complainant's father's sister). Further it is stated that when she was studying for engineering, the petitioner expressed his desire to marry her and then she told him that she can do so only if her father permits. That on account of the alleged bad character of the petitioner, her father was not prepared to give her in marriage and that she had told the petitioner about that. That when the 2[nd] respondent had gone along with her parents to attend a wedding reception on 21.5.2016 at about 8.30 pm., the petitioner, who was there, had then gone near to her and caught her by the hand and drawn her near to his body and when she made noise, her father objected it and pulled her out at the grip of the petitioner and then the petitioner left the scene and after the reception, when the 2[nd] respondent and her parents came out, at about 10.45 p.m. on the same day, the petitioner opened the door of their car and tried to enter into the car and her parents intervened and prevented it and further that later the petitioner had filed Anx. X W.P.(Crl) before this Court seeking habeas corpus to produce her and that he has relied on false messages by hacking her Facebook account and that later, the Division Bench of this Court has disallowed his plea for habeas corpus as per Anx. XII judgment on 28.7.2016. Later the petitioner married another women on 14.4.2017 and the marriage Crl.M.C.4047/19 - : 4 :- of the 2[nd] respondent defacto complainant was fixed on 30.7.2017 to be conducted on 27.8.2017. Thereafter, threatening phone messages were sent from the petitioner's wife's phone to R-2 and that the petitioner had allegedly hacked her Facebook account and downloaded her photographs and morphed the same and sent it to her fiancee, who went back from the marriage proposal. 2. The petitioner would assert that the abovesaid allegations raised are false and baseless and the said allegations have not been made by the 2[nd] respondent by her own, but only on account of the instigation by her father, who is having animosity against the petitioner for maintaining love affair between the parties. That as a matter of fact, the petitioner and the 2[nd] respondent were having a intense love affair as evident from Anx. IV photographs, etc. and that the parents of the 2[nd] respondent were against their relationship and against the petitioner from getting married to the 2[nd] respondent. That the petitioner had filed Anx.X W.P.(Crl).No. 190/2016 before this Court seeking the release of the 2[nd] respondent from the alleged illegal custody of her father. That the 2[nd] respondent's father on coming to know about the filing of the abovesaid Anx. X W.P.(Crl), had taken her to Abu Dhabi. But when this development was brought to the notice, the Division Bench of this Court had directed to produce Crl.M.C.4047/19 - : 5 :- her before the Division Bench. That R-2 was produced before this Court but she was forced by her parents to say that she was not under any illegal detention though she has clearly admitted before the Division Bench of this Court that she was in love with the petitioner, which aspect has been clearly recorded in Anx. XII judgment dated 28.7.2016 rendered by the Division Bench of this Court in W.P. (Crl).No. 190/2016. That the abovesaid statement of the 2[nd] respondent as recorded by the Division Bench of this Court in Anx. XII judgment in W.P.(Crl).No.190/2016 on 31.6.2019, would clearly show that the main incidents, which are said to have allegedly occurred on 21.6.2016 as narrated in Anx.II FIS on 17.8.2017 are absolutely false. Accordingly, it is urged by the petitioner that the initiation and continuance of the impugned criminal proceedings is nothing but an abuse of the process of the court. In the light of these aspects that the petitioner has sought for quashment of the impugned criminal proceedings, which has now led to the pendency of Calendar Case, C.C.No.2264/2017 on the file of the Judicial First Class Magistrate's Court-I, Hosdurg. 3. Heard Sri. B.Pramod, learned counsel appearing for the petitioner accused and Sri.T.R.Renjith, learned Prosecutor appearing for R-1 State. Despite service of notice on R-2 lady defacto Crl.M.C.4047/19 - : 6 :- complainant, there is no appearance for that party. 4. It appears that the petitioner had earlier filed Anx.X W.P. (Crl).No.190/2016 before the Division Bench of this Court on 25.5.2016 seeking for directions of this Court to release the 2[nd] respondent herein from the alleged illegal custody of her father. After issuance of notice, the Division Bench of this Court has been intimated that by then, R-3 therein and his wife (parents of R-2 herein) as well as the detenue (R-2 herein) had left the country for Abu Dhabi. Later this Court as per Anx. XI order dated 31.5.2016 in W.P.(Crl).No. 190/2016 had directed issuance of notice to the parties in their Abu Dhabi address. Thereafter, R-2 herein was produced before the Division Bench of this Court in the abovesaid habeas corpus writ proceedings on 28.7.2016. Further when R-2 herein appeared before the Division Bench of this Court on 28.7.2016, their Lordships of the Division Bench have interacted with the detenue, during which she has admitted to the court that she has been in love with the petitioner for about 7 years and that now she is not desirous to go with him and she wants to be with her parents. Accordingly this Court had held that since the detenue is interested to go with her parents, the case was closed as per Anx.XII judgment dated 28.7.2016 rendered by the Division Bench in W.P.(Crl).No. 190/2016. Crl.M.C.4047/19 - : 7 :- 5. In the instant case, the main incidents are said to have happened on 21.6.2016 as alleged in Anx. II FIS and Anx. III FIR dated 17.8.2017. If, as a matter of fact, the abovesaid alleged incidents, which occurred on 21.6.2016 were true, then certainly R-2 would not have admitted before the Division Bench of this Court on 28.7.2016 as per Anx. XII judgment that she has been in love with the petitioner herein for the last 7 years. Therefore, this would clearly show that the version projected in Anx. II FIS and Anx. III FIR is an afterthought and has been made due to extraneous considerations. It is admitted by R-2 herein in Anx. II FIS that later the petitioner had married another woman on 14.4.4017, etc. Further it appears that from Anxs. X and XI that when notice was issued by this Court to the father of the 2[nd] respondent in the abovesaid habeas corpus proceedings, the 2[nd] respondent father and his wife (R-2's mother) had taken R-2 to Abu Dhabi by then and this Court was then constrained to pass Anx.XI order dated 31.5.2016 to effect service of notice on the parties in the Abu Dhabi address. It is thereafter that R- 2 has appeared before this Court on 28.7.2016, whereupon she has said that she had been in love with the petitioner for about 7 years, but that she is not desirous to go with him and that she wants to live with her parents, etc. Further it is also admitted that the fact that the Crl.M.C.4047/19 - : 8 :- petitioner herein is the first cuisine of the 2[nd] respondent herein. It is also clear that the parents of R-2 herein more particularly her father objected the proposed marriage with the parties. Presumably on account of the worsened relationship between the parties, R-2 herein would have been instigated by her parents to make the allegations in Anx. II FIS regarding the abovesaid incidents, which have happened on 21.6.2016. Be that as it may, in view of the clear admission by R-2 on 28.7.2016, as recorded by this Court in Anx. XII judgment it can only be held that her version in Anx. II FIS dated 17.8.1027 about the alleged incidents, which have happened on 21.6.2016 is false. Further a series of allegations have been made that the petitioner had allegedly hacked into the Facebook account of the 2[nd] respondent and that he has morphed her picture and sent it to her fiancee, etc. But the investigation has now been completed and Anx. I final report/charge sheet has been filed in the above crime. A mere perusal of Anx. I final report/charge sheet would show that no materials whatsoever regarding the alleged downloading of the photos, morphing of the photos, sending of such photo to R-2's fiancee have been produced by the prosecution therein. So it is only to be held that the allegations regarding the hacking of the Facebook account and alleged morphing of the photographs and sending it to R-2's fiancee, etc. would also Crl.M.C.4047/19 - : 9 :- crumble to the ground for the simple reason that no materials whatsoever have been produced in support of such allegation in Anx. I final report/charge sheet, except making such bald allegations. 6. It has been held by the Apex Court and various High Courts including this Court in various decisions as in State of _**Haryana & Ors. v. Bhajan Lal & Ors.**_ [1992 Suppl. (1) SCC 335], _**Rukmini Narvekar v. Vijaya Satardekar & Ors.**_ [(2008) 14 SCC 1], _**Rajiv Tapar & Ors. v. Madan Lal Kapoor**_ [(2013) 3 SCC 330], etc. that when the plea is made for quashment of the impugned criminal proceedings on the ground that it is actuated by malice and ulterior motives for wreaking vengeance on the accused, etc., then courts could look into materials of sterlling and unimpeachable quality produced by the petitioner in proceedings under Sec. 482 of the Cr.P.C. Anx. IV series of photographs and Anxs. V to VII communications would show that the petitioner herein and R-2 were having very intimate love affair. Even without looking into such additional materials, it can be seen that none other than R-2 herein had clearly admitted before the Division Bench of this Court on 28.7.2016, as recorded in Anx. XII judgment, that she has been in love with the petitioner for about 7 years. From Anxs.X to XII writ proceedings it can be safely inferred that the father of the 2[nd] Crl.M.C.4047/19 - : 10 :- respondent was opposing the proposal of the marriage between the parties tooth and nail and therefore the plea made by the petitioner that the impugned criminal proceedings have been initiated by R-2 is only on account of the instigation of her parents, more particularly her father, etc, would assume importance. 7. In the light of the abovesaid aspects, it is ordered in the interest of justice that the impugned Anx. A-1 final report/charge sheet filed in Anx. III FIR in Crime No. 533/2017 of Chandera Police Station, which has led to the pendency of C.C.No. 2264/2017 on the file of the Judicial First Class Magistrate's Court-I, Hosdurg, and all further proceedings arising therefrom pending against the accused will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.4047/19 - : 11 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I TRUE COPY OF THE FINAL REPORT. ANNEXURE II TRUE COPY OF THE F.I.S IN CRIME NO.533/2017 OF CHANDERA POLICE STATION, KASARAGOD DISTRICT.** **ANNEXURE III TRUE COPY OF THE F.I.R IN CRIME NO.533/2017 OF CHANDERA POLICE STATION, KASARAGOD DISTRICT.** **ANNEXURE IV TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER AND THE 2ND RESPONDENT.** **ANNEXURE V TRUE COPY OF THE PHOTOGRAPHS OF THE LETTER DATED 17.03.2016. ANNEXURE VI TRUE COPY OF THE TRANSPORT OF THE LETTER DATED 18.03.2016. ANNEXURE VII TRUE COPY OF THE PRINTOUT OF THE E-MAIL DATED 05.04.2016 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. ANNEXURE VIII TRUE COPY OF THE PRINT OUT OF THE SCREEN SHOT CONTAINING THE MESSAGE DATED 24.05.2016 SENT BY THE 2ND RESPONDENT. ANNEXURE IX TRUE COPY OF THE FACT BOOK MESSAGE DATED 10.05.2016 SENT BY THE 2ND RESPONDENT. ANNEXURE X TRUE COPY OF THE MEMORANDUM OF WP(CRL.)NO.190/2016 BEFORE THE HON'BLE HIGH COURT. ANNEXURE XI TRUE COPY OF THE INTERIM ORDER DATED 31.05.2016. ANNEXURE XII TRUE COPY OF THE JUDGMENT DATED 28.07.2016 IN WP(CRL)NO.190/2016. ANNEXURE XIII TRUE COPY OF THE SCREEN SHOT OF THE FACEBOOK MESSAGES.**