Bijoy and Others v. State of Kerala and S.I.O. Police, Kotta Police Station and U.K. Sheena

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933** **Crl.MC.No. 1043 of 2008()** **-------------------------** **(Crime No.46/2004 of Kottai Police Station, Palakkad)** **PETITIONERS:** - **---------------** **1. BIJOY,AGED 34 YEARS,S/O.KUTTAPPAN KUTTIPPADY VEEDU, PERINGOTTUKURISSY AMSOM, ALATHUR TALUK, PALAKKAD.** **2. KUTTAPPAN.K.A.,AGED 68 YEARS KUTTIPPADY VEEDU, PERINGOTTUKURISSY AMSOM, ALATHUR TALUK, PALAKKAD.** **3. SATHYABHAMA, AGED 60 YEARS** - **W/O.KUTTAPPAN, KUTTIPPADY VEEDU PERINGOTTUKURISSY AMSOM, ALATHUR TALUK, PALAKKAD.** **4. MRS.SHEELA RAVINDRAN,** **W/O.DR.A.M.RAVINDRAN, LECTURER IN ECONOMICS K.M.CENTRE FOR P.G.STUDIES, LAWSPET, PONDICHERRY 605008** **5. MRS.SUJITHA RAVINDRAN,** - **W/O.V.RAVINDRAN, 14/419-1 VIVEKANANDA COLONY, KUNNATHURMEDU, PALAKKAD.** **6. MRS. SUMITHA, J.PRAKASH** - **W/O.JYOTHI PRAKASH TILAK, C/O.TNT EXPRESS WORLD WIDE** - **P.B.NO. 1277, DOHA, QATAR.** **BY ADV. SRI.T.RAVIKUMAR SMT.G.AMBILI** **RESPONDENTS:** - **---------------** **1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR (CRIME NO. 46 OF 2004 OF THE KOTTAI POLICE STATION ,PALAKKAD DISTRICT) HIGH COURT OF KERALA,.** **2. THE S.I.OF POLICE, KOTTAI POLICE STATION, PALAKKAD.** **3. SMT.U.K.SHEENA,D/O.UNNIKRISHNAN KENAMPULLI, KACHERIMEDU, CHITTOOR, PALAKKAD.** **PUBLIC PROSECUTOR SRI. MANOJ P KUNJACHAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 1043 of 2008()** **PETITIONERS ANNEXURES:** **ANNEXURE:1: CERTIFIED COPY OF THE CHARGE SUBMITTED BY THE 2ND RESPONDENT ON 23.4.2004 ANNEXURE:2: TRUE COPY OF THE MOP NO. 173/2003 DT.3.9.2003** **ANNEXURE:3: TRUE COPY OF THE LAWYER'S NOTICE DT. 2.1.2003 ANNEXURE:4: TRUE COPY OF THE REGISTERED LETTER DT.7.1.2003 ANNEXURE:5: TRUE COPY OF THE COMMON ORDER DATED 18.10.2007 IN Crl.M.C. No.1672/2005** ## **RESPONDENTS' ANNEXURES: NIL** ## **TRUE COPY** **P.A TO JUDGE** **jma** **C.T. RAVIKUMAR, J. ---------------------------------------------------Crl.M.C No. 1043 of 2008 ---------------------------------------------------Dated this the 14[th] day of October, 2011** ## **O R D E R** The petitioners are accused numbers 1 to 6 in C.C. No.535/2004 on the file of the Judicial First Class Magistrate Court -I Palakkad. They have been indicted under Section 498 A read with Section 34 of the Indian Penal Code before that Court. It is seeking quashment of Annexure I and FIR in C.C No. 535 of 2004(Crime No. 46 of 2004 of the Kottai Police Station, Palakkad) pending before the Judicial First Class Magistrate Court I Palakkad that this petition has been filed. 2. The first petitioner married the 3[rd] respondent on 1.9.2002. Petitioners 2 and 3 are the parents of the first petitioner and petitioners 4 to 6 are his sisters. This case was admitted on 12.3.2008. Though notice was served on the 3[rd] respondent who is the defacto complainant in May 2008 she has chosen not to enter appearance and contest the matter. In fact, notice was served on the 3[rd] respondent as are back in the year 2008. 2. The contention of the petitioners is that after the Crl.M.C No.1043/2008. : 2 : marriage, the first petitioner and the 3[rd] respondent lived together in the matrimonial home only for four days. Thereafter, they stayed in a rented house at Aluva for about four months. On 15.12.2002, the 3[rd] respondent went back to her paternal home at Palakkad. Thereafter, the first petitioner caused Annexure-3 lawyer notice to the 3[rd] respondent. On much persuasion, she returned to the first petitioner on 7.1.2003. Hardly within one month she again abandoned the company of the first petitioner. Later, she filed M.O.P No. 173/2003, before the Sub Court, Palakkad. Subsequently, on 19.4.2004 Annexure I complaint was filed by the 3[rd] respondent. It is seeking quashment of the said complaint and FIR in CC No. 535 of 2004 that this petition has been filed. 3. The specific contention of the petitioners is that even if the entire allegations in Annexure I complaint have been taken as true and correct they would not constitute an offence under Section 498 A IPC. In view of the said specific contention a scanning of Annexure I complaint with reference to the ingredients of Section 498A IPC becomes inevitable. In other words, the only point to be considered is whether the allegations in Annexure I complaint constitute an offence Crl.M.C No.1043/2008. : 3 : under Section 498 A IPC. I have heard the learned counsel for the petitioners and the learned Public Prosecutor. 4. The word 'cruelty' has been defined in the explanation appended to Section 498 A of the Indian Penal Code and it reads thus:- 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 or 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. Thus, cruelty may be physical, mental or emotional harassments beyond endurance. It has to be a repressible conduct viz., a conduct of such a character to cause danger to life, limb or health, physical or mental, so as to give a reasonable apprehension of such a danger. 5. A perusal of Annexure-I complaint would reveal that the defacto complainant viz., the 3[rd] respondent did not have a complaint that the petitioners viz., accused A1 to A6 had Crl.M.C No.1043/2008. : 4 : committed any wilful conduct which is of such a nature likely to drive her to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Therefore, the question is whether the rest of the allegations in Annexure-I complaint would attract clause (b) of the explanation appended to 498 A. The allegations are bereft of details. The allegations that are relevant for the purpose are as hereunder:- അന��യക�ര�യ�ട� വ�വ�ഹസമയത� 65 പവട�റ ആഭരണങള നല��യതല�ടത പണമ�യ� യ�ടത�ര� സ!ഖ�യ�! സ�#ത$ധനമ�യ� നല��യ�ടലന� ആരര�പ�ച� അന��യക�ര�ടയ ഒന�! #പത�യ�! വ$ട���ര�! മ�നസ��മ�യ� പ$ഢ�പ�ച�.#പത��ള എല�വര�! ര0രന� ആഭരണവ�! പണവ�! #പത$ക�ചത� രപ�ട3 തന�ടലന�! ആയത� നല��ടത മനസമ�ധ�നരത�� ��4�� ഇവ�ട� ജ$വ�ക �വ�� സ�ധ�ക��യ�ടലന�!#പത��ള�ട� സ��ര9ര9�ന� അന�സര�ച�ള ആഭരണ! അണ�ഞ�ട�ടലന�! ആയത� ഉ�� ട��ണ�വരണടമന�! ട��ണ�വന�ടലങ�ല ജ$വരന�ട� വ$ട�ര3ക� ത�ര�ച� രപ���ടലന�! മറ���ത�വ�ക��ള�! അന�വശ�ങള�! പറഞ� അന��യക�ര�ടയ ഭ$ഷണ�ടപ��ത� മ�നസ��മ�യ�! ശ�ര$ര��മ�യ�! പ$ഢ�പ�ച�ട�ണ�. ആ3�വയ�ല ത�മസ�ക�രB�ഴ�! 2 മ�തല 6 �4�� #പത��ള രE�ണ�ലക4�� അന��യക�ര�രയ��� ഭ$ഷണ� സFരത�ല അസഭ�ങള പറയ3�! ഭ$ഷണ�ടപ��ത3�! പത�വ�ണ� അന��യക�ര�ക� ഇഷമ�ള ഭകണ!, വസ�#ത!, സരH�ഷമ�യ ജ$വ�ത! എന�വ 3ഭ�ച�ട�ല. ഒന�! #പത�യ�ട� ആ3�വയ�3�ള വ$ട�ല ഒര� 'house arrest' ടന രപ�ട3യ�ണ� അന��യക�ര� ജ$വ�ച�ട�ളത�. മ�നസ��വ�ഷമ! ഉണ�ക�നവ�ധത�ല ഓരര� ��ത�വ�ക��ള പറഞ� അന��യകര�ടയ ഒന�! #പത� പ$ഢ�പ�ച�വന� Crl.M.C No.1043/2008. : 5 : 6. Evidently, the complaint itself would reveal that even after making such allegations against the petitioners she had returned to the company of the first petitioner on 6.1.2003. The averments in Annexure-I would show that it is an admitted fact, thereafter they lived in Aluva in the rented house from 7.1.2003 till 2.2.2003. Later, the 3[rd] respondent parted with the company of the first petitioner on 2.2.2003. Annexure-I complaint was thereafter filed on 19.4.2004. Thus, evidently, the said complaint was filed after more than one year since she left the company of the first petitioner. Going by the allegations in Annexure-I complaint, after the marriage they resided in her matrimonial home only for about four days. Thereafter, for about four months they lived in a rented house at Aluva. There is no specific allegation against the parents of the first petitioner viz., petitioners 2 and 3. As already mentioned even going by Annexure-I complaint they lived in the matrimonial home along with the parents only for about four days. In what manner she was tortured during those days have not been specifically stated in the complaint. In fact, there is no specific complaint at all against them. As regards the petitioners 4 to 6 also there is absolute absence of specific Crl.M.C No.1043/2008. : 6 : contentions against them in Annexure-I complaint. The only allegation which is levelled against the petitioners 2 to 6 is as follows:- ആ3�വയ�ല ത�മസ�ക�രB�ഴ�! 2 മ�തല 6 �4�� #പത��ള രE�ണ�ലക4�� അന��യക�ര�രയ��� ഭ$ഷണ� സFരത�ല അസഭ�ങള പറയ3�! ഭ$ഷണ�ടപ��ത3�! പത�വ�ണ� The very statement with respect to the said allegation in Annexure I complaint would show that it is nothing but vague. Annexure-I is bereft of details with respect to such allegations against them. At any rate, those allegations in the said complaint to the extent it pertains to the petitioners 2 to 6 are insufficient to constitute any offence under Section 498 A against the petitioners 2 to 6. Then what remains to be considered is whether the allegations in Annexure-I complaint would constitute the offence under Section 498 A against the first petitioner. As already noticed hereinbefore, after making certain allegations against the first petitioner, as is obvious from Annexure-I complaint, the 3[rd] respondent herself admitted that they started living together from 7.1.2003. Annexure I complaint itself would reveal that from 7.1.2003 till 2.2.2003 they continued to live together. What are the Crl.M.C No.1043/2008. : 7 : allegations made against the first petitioner in relation to that short period from 7.1.2003 to 2.2.2003? The following are the allegations made in Annexure-I complaint in respect of the said period. 7.1.2003 ത$യത� അന��യക�ര�രയയ �! �4ട� ഒന�! #പത� ആ3�വയ�ര3ക� രപ�വ��യ�! അവ�ട�വച� 2.2.2003 ത$യത� വടര ഒന�! #പത� അന��യക�ര�ടയ മ�നസ��മ�യ �! ശ�ര$ര��മ�യ�! വളടരയധ��! പ$ഢ�പ�ച� വന �. പ3ദ�വസങള�3�! അന��യക�ര�ടയ മരP�ച� പ$ഢ�പ�ച� വന�. അന��യക�ര� M.A History II[nd] year പര$ക എഴ�ത�നത�ന� fees അ�ക�വ�� അവസ�ന ദ�വസമ�യ�ട�! അന��യക�ര�ടയ അ�ക�വ�� അന�വദ�ച�ല. ആയത�ന� പ�റത� രപ�� �വ�ന�! സമത�ച�ല . എന�മ�#തമല ര�ളക�വ�ന�! പറയ�വ�ന�! പറ�ത ഒര�പ��� അസഭ�ങള പറഞ�! ശര�യ�യ ഭകണ! നല��ടതയ�! ഒന�! #പത�യ�ക� ഇഷമ�ളവ�ധത�ല ഒന�! #പത�യ �ട� വ$ട�3�ട� അന��യക�ര�ടയ പ$ഢ�പ�ച� ഒന�! #പത� ആയത� �ണ� രസ�ച� ജ$വ�ച�. ത��രന� അന��യക�ര� ��യ�ര�യ�ട� അചടന രE�ണ ട0യ�ത� വര�ത� അവ���ന� രകടപട� 2.2.2003 ത�യത� അന��യക�ര�യ�ട� വ$ട�ര3ക� വര��യ�! ട0യ�ത�. Unhappiness in the matrimonial life or the fact that the husband was unable to give the food and cloth as desired by Crl.M.C No.1043/2008. : 8 : the concerned woman cannot be a ground to attract the provisions under Section 498 A of Indian Penal Code. The learned counsel for the petitioner relied on by two decision of the Hon'ble Apex Court reported in Pashaura Singh V. State Of Punjab(2010(11)SCC 749) and U.Suvetha v. State(2009(6) SCC 757). In the light of the said decisions there cannot be any doubt with respect to the position that in order to prosecute the husband on the allegation that he had committed offences under Section 498 A of the IPC the allegation in a complaint should be such that it would bring the case within the definition of 'cruelty' under clauses (a) or (b) of the explanation appended to Section 498 A. There cannot be any doubt that in section 498 A IPC there is departure from the normal principle of criminal jurisprudence casting the burden of proof on the prosecution to establish the commission of the offence against the accused. However, that would not and could not by itself, relieve a complainant from making specific allegations that would satisfy the ingredients to constitute an offence under 498A against the concerned person/persons. I am of the considered view that the allegations in Annexure - I complaint even if taken on their Crl.M.C No.1043/2008. : 9 : entirety would not constitute the offence alleged against the petitioners. As already found in this case the allegation in Annexure I complaint do not constitute any offence which could be brought under Section 498 A of the IPC. In the said circumstances, it will be nothing but an abuse of process of court if the prosecution against the petitioners is permitted to be continued. I am of the view that this is a fit case wherein this Court should involve the extra ordinary jurisdiction under Section 482 of the Code of Criminal procedure to bring forth an abrupt termination of the prosecution against the petitioners. Accordingly, Annexure-I complaint and all proceedings in CCNo.535/2004 on the file of Judicial First Class Magistrate Court I Palakkad against the petitioners are quashed. Accordingly, this Criminal Miscellaneous Case is allowed. ## Sd/- **C.T. RAVIKUMAR, JUDGE** ## **//true copy//** jma ## **P.A to Judge**