Biji Sunil and P. Abraham @ Aniyan Kunju v. State of Kerala and Nisha Binod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936** ## **Crl.MC.No. 3900 of 2012 ---------------------------** ## **C.C.NO. 776/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT ,THIRUVALLA -------------** **PETITIONERS : -----------------------1. BIJI SUNIL, AGED 39 YEARS, W/O.SUNIL, PALANTHRA HOUSE, KARIMPA P.O., EDAKURISHI, PALAKKAD. 2. P.I.ABRAHAM @ ANIYAN KUNJU, AGED 50 YEARS, S/O.IDICULA, PULAYAKUNNEL, NELLAD, ERAVIPEROOR P.O., THIRUVALLA.** **BY ADV. SRI.SANTHOSH G. PRABHU** ## **RESPONDENTS :** |**RESPONDENTS :**|**RESPONDENTS :**| |---|---| |**--------------------------**|| |**1.**|**STATE OF KERALA,**| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2.**|**NISHA BINOD, AGED 30 YEARS,**| ||**D/O.C.K.MATHEW, KUNNEL PARAMBIL HOUSE,**| ||**CHINGAVANOM P.O., KOTTAYAM DISTRICT, PIN - 686 531.**| ||**R1 BY PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR**| ||**R2 BY ADV. SRI.V.TEKCHAND**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 3900 of 2012** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1 : A CERTIFIED COPY OF FIR DATED 26.07.2011 FILED BEFORE THE HON'BLE JUDICIAL 1ST CLASS MAGISTRATE COURT, THIRUVALLA. ANNEXURE A1(a): A CERTIFIED COPY OF FINAL REPORT DATED 28.11.2011 FILED BEFORE THE HON'BLE JUDICIAL 1ST CLASS MAGISTRATE COURT, THIRUVALLA. ANNEXURE A2 : A TRUE COPY OF THE O.P.NO.631/2012 ON THE FILES OF THE HON'BLE FAMILY COURT AT KOTTAYAM. ANNEXURE A3 : A TRUE COPY OF THE O.P.NO.1059/2011 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. ANNEXURE A4: A TRUE COPY OF THE M.C.NO.80/2011 ON THE FILES OF THE HON'BLE JFCM COURT I, CHANGANACHERRY. ANNEXURE A5: A TRUE COPY OF THE M.C.NO.411/2011 ON THE FILES OF THE HON'BLE FAMILY COURT, KOTTAYAM.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** ## **//TRUE COPY//** ## **P.S.TO JUDGE.** Msd. ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.3900 of 2012 ---------------------------------------------Dated this the 22[nd] day of May, 2014 ## **ORDER** Petitioners are A5 and A6 in Crime No.1051/2011 of Thiruvalla Police Station, which was registered u/s.498A r/w 34 IPC. The 2[nd] respondent filed the above complaint before Circle Inspector of Police, Thiruvalla, which was entrusted to the Sub Inspector of Police, Thiruvalla for investigation. On the basis of that, Thiruvalla Police registered the above crime against six accused and investigation is progressing. The 1[st] petitioner is the sister and the 2[nd] petitioner is the uncle of the 2[nd] respondent's husband. The 2[nd] respondent alleged that they illtreated her both mentally and physically demanding more amount as dowry. The petitioners contended that they are innocent and falsely implicated in this case due to personal enmity. The 1[st] petitioner is residing at Palghat and the 2[nd] petitioner is the uncle, who has no direct contact with the Crl.M.C.No.3900/12 2 aforesaid averment. If trial is proceeded, it is a mere abuse of process of the Court. Hence, they seek to invoke the inherent jurisdiction. 2. The allegation of the 2[nd] respondent in her complaint was that on 30.8.2007 her marriage was solemnised with the 1[st] accused as per Christian customary rites at St.Mary's Knanaya Church, Thengeli. In the wedlock, a child was born to them on 8.1.2010. At the time of marriage, Rs.2,00,000/- and 40 sovereigns were given as her share. After the marriage, the 1[st] accused went to Dubai in his workplace and returned to the native place in December 2008. While residing so, the accused 1 to 6 ill-treated her both mentally and physically demanding more amount as dowry. Finally, they ousted her from the matrimonial house. In the circumstances, she was forced to file the above complaint. Hence, the petitioners approached this Court with this petition. 3. The learned counsel appearing for the petitioners contended that prima facie case is not made out against the petitioners, since they are residing at Palghat and Crl.M.C.No.3900/12 3 Eraviperoor. Nothing has been stated in Annexure-A1 complaint about the overt act for attracting Section 498A IPC. In the final report also, there is no allegation attracting 498A against these persons. In the absence of specific averment constituting the offence in the complaint and in the final report, the trial of the case will end in acquittal and it is a mere abuse of process of the Court. The learned counsel for the petitioners relied the Apex Court decisions in _**Preeti Gupta and another**_ v. _**State of Jharkhand and another**_ [2010 (7) SCC 667] and _**Shakson Belthissor**_ v. _**State of Kerala and another**_ [2009(14) SCC 466]. 4. The learned Public Prosecutor and the learned counsel appearing for the 2[nd] respondent strongly resisted the above contention and contended that prima facie case is made out against them. Additional statement taken by the Thiruvalla Police was suppressed by the petitioners in this petition. In the additional statement, the overt acts of 5[th] and 6[th] accused were specifically mentioned by the investigating officer. Therefore, if any interference is warranted at this stage, it will affect the entire prosecution case. Hence, they Crl.M.C.No.3900/12 4 seek to dismiss the petition. 5. In order to attract 498A IPC, the prosecution has to plead that the husband or relative of husband of a woman is subjecting her to cruelty to meet any unlawful demand for any property or valuable security or there is failure on her part or any person related to her to meet such demand. Any wilful conduct of any nature likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman or harassment of the woman will come within the purview of Section 498A IPC. Section 498A reads as follows: “498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, “cruelty” means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental of physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Crl.M.C.No.3900/12 5 6. In the light of the aforesaid ingredients, I have considered the averments in Annexure-A1 complaint. The overt act committed by A5 and A6 are not specifically mentioned in Annexure-A1. But, the 2[nd] respondent stated therein that A2, A3, A4 and A5 called her 'kokkumundi' and another allegation mentioned in the complaint was that the husband, mother-in-law, 2[nd] sister of the husband and his mother's brother ill-treated her mentally. But, what type of illtreatment they made was not specifically mentioned in her petition. 7. The learned counsel appearing for the 2[nd] respondent contended that the additional statements were taken by the additional Sub Inspector of Police, Thiruvalla, which discloses the overt act and mental ill-treatment made by these petitioners. 8. In the light of that submission, I have perused the final report, in which it is stated that her privacy was lost due to the interference of A5 and A6 talked in an indecent words against her at the native place and thereby A5 and A6 made mental harassment. But, in the complaint, there is specific Crl.M.C.No.3900/12 6 allegation against the 5[th] accused. Therefore, I am of the opinion that if trial of A6 is continued in the Court of law, it will amount to mere abuse of process of the Court. ## 9. In _**Preeti Gupta's case**_ (supra), Apex Court held as follows: “31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under S.498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 32. xxx xxx xxx 33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The Courts have to be extremely careful and cautions in dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge Crl.M.C.No.3900/12 7 that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement, altogether. The process of suffering is extremely long and painful.” ## In _**Shakson Belthissor's case**_ (supra), Apex Court held as follows: “21. In the light of the aforesaid language used in the Section, the provision would be applicable only to such a case where the husband or the relative of the husband of a woman subjects the said woman to cruelty. When the ingredients of the aforesaid Section are present in a particular case, in that event the person concerned against whom the offence is alleged would be tried in accordance with law in a trial instituted against him and if found guilty the accused would be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The said section contains an explanation, which defines "cruelty" as understood under Section 498-A, IPC. In order to understand the meaning of the expression 'cruelty' as envisaged under Section 498-A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman. 22.When we examine the facts of the present case particularly the FIR and the charge-sheet we find that there is no such allegation either in the FIR or in the charge-sheet making out a prima facie case as narrated under Explanation (a). There is no allegation that there is any such conduct on the part of the appellant which could be said to be amounting to cruelty of such a nature as is likely to cause the Respondent No. 2 to commit suicide or to cause any injury to her life. The ingredient to constitute an offence under Explanation (a) of Section 498-A, IPC are not at all mentioned either in FIR or in chargesheet and in absence thereof, no case is made out. Therefore, Explanation (a) as found in Section 498A, IPC is clearly not attracted in the present case. 23.We, therefore, now proceed to examine as to whether the case would fall under Explanation (b) of Section 498-A of IPC constituting cruelty of the Crl.M.C.No.3900/12 8 nature as mentioned in Explanation (b). In order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. When the allegation made in the FIR and charge- sheet is examined in the present case in the light of the aforesaid provision, we find that no prima facie case even under the aforesaid provision is made out to attract a case of cruelty.” The inherent powers of the High Court contemplated u/s 482 Cr.P.C. has to be exercised only for the three purposes mentioned in the Section i.e, to make such orders necessary to “give effect to any order” under this code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. Apex Court in _**State of Haryana**_ V. _**Bhajanlal**_ , [1992 SCC (Crl) 426] pointed out that: “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”. ## Apex Court in _**State of Karnataka**_ v. _**L. Muniswamy and others**_ ## [1977 (2) SCC 699] held as follows: “.....the wholesome power under S.482 Cr.PC entitles the High Court to quash a proceeding when it comes Crl.M.C.No.3900/12 9 to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. 10. Considering the facts and circumstances, it is found that trial of the case against A6 is a mere abuse of the process of Court. This will not affect the trial of the case against A1 to A5 in this case. Hence, I quash the charge against A6 in the final report. Crl.M.C. is partly allowed. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.3900/12 10 Crl.M.C.No.3900/12 11