High Court of KeralaSingle Judge2022-08-29Partly allowed; proceedings quashed against 3rd...

CRL.M.C. Nos. 465 of 2013 & 845 of 2014, High Court of Kerala at Ernakulam

Case / Petition Number:CRL.M.C. 465/2013; CRL.M.C. 845/2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Bechu Kurian Thomas
Judgment Date: 2022-08-29
Court Decision / Holding: Common order: CRL.M.C.465/2013 allowed in part; quashed the proceedings against the 3rd accused; held that the 1st accused in 465/2013 had abated; quashed the proceedings against the 2nd petitioner in 465/2013 (death); CRL.M.C.845/2014 dismissed. Thus, the relief sought in 465/2013 was granted in part, and the relief sought in 845/2014 was refused.
Final Disposition: Partly allowed; proceedings quashed against 3rd accused; abatement for 1st accused in 465/2013; 2nd accused’s proceedings quashed due to death; CRL.M.C.845/2014 dismissed; relief granted only to the extent stated in the order.

Parties to the Case

Appellants / Petitioners

Subaida
Shemi
Nasar

Respondents

State of Kerala (represented by the Sub-Inspector of Police, Mattancherry Police Station, Cr. No.1011/2011)
Rashiya (defacto complainant)

Legal Representation & Advocates

Counsels for Petitioners

• Sri C. Anilkumar (Kallesseril); Sri C. Y. Vinod Kumar

Counsels for Respondents

• Sri S. Rajeev
• Smt. M.K. Pushpalatha

Case Synopsis & Summary

These two criminal miscellaneous petitions arise from Crime No.1011/2011 of Mattancherry Police Station, now registered as C.C.1912/2011 in the Judicial First Class Magistrate’s Court-II, Kochi. The petitioners, accused Nos.1 to 3, challenge the final report under Section 482 Cr.P.C. alleging offences under Section 498A read with Section 34 IPC. The defacto complainant is the wife of Nasar, the petitioner in Crl.M.C. No.845/2014. The two petitions concern different combinations of co-accused: in Crl.M.C.465/2013 the mother-in-law and sister-in-law; in Crl.M.C.845/2014 the husband of the defacto complainant. The prosecution originally charged offences under Section 498A read with Section 34 IPC; Sections 406 and 420 IPC were not included after investigation. At the hearing, counsel for the petitioners argued that even if the allegations are admitted, no offence is made out and the proceedings amount to abuse of the process; the 3rd accused had no specific overt act; and the 1st accused had died, causing abatement. Counsel for the defacto complainant contended that the allegations are specific and amount to offences, and that the court cannot weigh truth at this stage. The learned Judge held that there are prima facie allegations against the 1st and 2nd accused, the 3rd accused has vague allegations, and the 2nd accused having died abates. He quashed the proceedings against the 3rd accused, held abatement for the 1st accused in 465/2013, and dismissed the 845/2014 petition, while allowing 465/2013 in part.

Provisions of Law Cited

Section 482 Cr.P.C.Section 498A IPCSection 34 IPCSection 420 IPCSection 406 IPC

Legal Doctrines & Maxims

Abuse of the process of the court
Power of the High Court to quash criminal proceedings under Section 482 Cr.P.C.
Prima facie allegations (as a working standard at the pre-trial stage)

Submissions & Arguments

Contentions of Appellants / Petitioners

Submitted that even if the allegations are admitted, the offences are not made out; the proceeding is an abuse of the process; for the 3rd accused there is no specific overt act; the 1st accused had died, resulting abatement. They contended there was no basis to continue the prosecution at this stage.

Contentions of Respondents

Contended that the allegations are clearly made and the truthfulness of statements cannot be adjudicated at the pre-trial stage; relied on case law to argue that these are matters for trial and that the court should not interfere at this stage.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
K. Neelaveni v. State rep. by Inspector of Police and others	(2010) 11 SCC 607	Mentioned Only	Cited by the respondents to support the proposition that truthfulness of the allegations is to be considered at trial, not at the stage of quashing; the court treated the matter as one for trial and did not rely on it to grant relief at this stage.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944** **CRL.MC NO. 465 OF 2013** **AGAINST THE ORDER/JUDGMENT CC 1912/2011 (CR.1011/2011 OF MATTANCHERRY POLICE STATION) AND ALL FURTHER PROCEEDINGS TAKEN AGAINST THE PETITIONERS ON THE FILE OF THE OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI** **PETITIONER/ACCUSED 2 AND 3 IN C.C.NO.1912/2011 ON THE FILE - OF JFCM COURT II, KOCHI:** - **1 SUBAIDA, AGED 62 YEARS W/O.M.J.HUSSAIN, RESIDING AT CC.12/1287(9/629), PANAYAPPILLY,THOPPUMPADY.P.O, KOCHI-682 005, ERNAKULAM DISTRICT.** - **2 SHEMI, AGED 40 YEARS W/O.ABDUL RASHEED, RESIDING AT CC/12/1287(9/630), PANAYAPPILLY,THOPPUMPADY.P.O, KOCHI-682005,ERNAKULAM DISTRICT. BY ADVS.** **SRI.C.ANILKUMAR (KALLESSERIL) SRI.C.Y.VINOD KUMAR** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA (REP.BY THE SUB INSPECTOR OF POLICE, MATTANCHERRY POLICE STATION-CR.1011/2011 OF MATTANCHERRY POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** - **2 RASHIYA AGED 31 YEARS D/O ABDU,MANAPPADI VEEDU,AKALAD.P.O,CHAVAKKAD,THRISSUR DISTRICT680506.** **BY ADV SRI.S.RAJEEV** **SMT.M.K.PUSHPALATHA, SR.PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH Crl.MC.845/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 CRL.MC NO. 845 OF 2014** **AGAINST THE ORDER/JUDGMENTCC 1912/2011 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS -II, KOCHI CRMC 465/2013 OF HIGH COURT OF KERALA** **PETITIONER/ACCUSED NO.1 IN C.C.NO.1912/2011 ON THE FILE OF - THE JFCM COURT II, KOCHI :** **NASAR, AGED 39 YEARS S/O.HUSSAIN, RESIDING AT CC 12/1287 (9/629), PANAYAPPILLY, THOPPUMPADY P.O., KOCHI - 682 005, ERNAKULAM DISTRICT. BY ADVS. SRI.C.ANILKUMAR (KALLESSERIL) SRI.C.Y.VINOD KUMAR** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT :** **1 STATE OF KERALA (REP. BY THE SUB INSPECTOR OF POLICE, MATTANCHERRY POLICE STATION - CR.NO.1011/2011 OF MATTANCHERRYPOLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 RASHIYA, AGED 31 YEARS D/O.ABDU, MANAPPADI VEEDU, AKALAD P.O., CHAVAKKAD, THRISSUR DISTRICT - 680 506.** **SMT.M.K.PUSHPALATHA, PP (SR)** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.08.2022, ALONG WITH Crl.MC.465/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **3** ## BECHU KURIAN THOMAS, J ......….................................. Crl.M.C.No.465 of 2013 & Crl.M.C.No.845 of 2014 ….................................. Dated this the 29th day of August, 2022 ## COMMON ORDER Petitioners in these two cases are accused Nos.1 to 3 in Crime No.1011/2011 of Mattancherry Police Station now pending as C.C.No.1912/2011 on the files of the Judicial First Class Magistrate's Court-II, Kochi; alleging offences punishable under Section 498A r/w Section 34 of the Indian Penal Code, 1860. 2. Petitioner in Crl.M.C.No.845/2014 is the husband of the defacto complainant while petitioners in Crl.M.C.No.465/2013 are the mother-in-law and sisterin-law of the defacto complainant. 3. Defacto complainant is the wife of the petitioner in Crl.M.C.No.845/2014. She filed a complaint against the petitioners alleging offences punishable under **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **4** Sections 498A, 420, 406 r/w Section 34 of IPC. Pursuant to the investigation, a final report was filed, arraying the petitioners as accused Nos.1 to 3, alleging offences punishable under Section 498A r/w Section 34 of IPC. These two petitions have been filed under Section 482 of Cr.P.C., questioning the aforesaid final report. 4. Sri.C.Anilkumar, the learned counsel for the petitioner, submitted that even if the entire prosecution allegations are assumed to be admitted, still the offences alleged are not made out. It was pointed out that the criminal prosecution is an abuse of the process of court and is required to be quashed. The learned counsel also submitted that as far as the 3[rd] accused, who is the 2[nd] petitioner in Crl.M.C.No.465/2013, is concerned, no specific overt act has been alleged against her, except for a vague allegation, and hence the offences alleged are not **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **5** made out under any stretch of imagination as against her. As far as the 1[st] petitioner in Crl.M.C. No.465/2013 is concerned, it was submitted that the said accused died during the proceedings, and therefore the case as against her, had abated. 5. Sri.S.Rajeev, the learned counsel for the defacto complainant, on the other hand took me through the specific allegations in the complaint as well as the first information statement and contended that necessary averments have been made by the defacto complainant constituting the offences alleged. It was further submitted that the allegations are clearly made out as against all the three accused and, therefore, Section 482 of Cr.P.C. cannot be invoked by the petitioners. The learned counsel also referred to the decision in K.Neelaveni v. State rep. By Inspector of Police and others (2010) 11 SCC 607 and contended that the truthfulness or otherwise of the allegations **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **6** cannot be gone into by this Court at this stage, as those are all matters of trial. 6. I have considered the rival contentions. 7. The offences under Sections 406 and 420 were not included after investigation. Therefore, as of now, the petitioners are proceeded against for the offences under Section 498A r/w Section 34 of IPC alone. 8. Section 498A of IPC makes the act of inflicting cruelty on a woman punishable. The meaning of the word 'cruelty' is explained in the said provision, as follows : [498A. Xxxx 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.] **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **7** 9. Thus, on a perusal of the statutory mandate, it is evident that the wilfull conduct, injury or danger to a woman must be so grave, that, it forces the woman to commit suicide or danger to life or limbs or the harassment meted out to a wife must be to meet any unlawful demand for property or valuable security. 10. A reading of the complaint filed by the defacto complainant, her first information statement as well as the final report reveals the absence of allegation of any overt act on the part of the 3[rd] accused in inflicting any harm on the defacto complainant. There is also no allegation regarding any wilfull conduct sufficient or likely to drive the woman to commit suicide or grave injury or danger to life, limb or health on the defacto complainant alleged against the 3[rd] accused. However, as far as the first accused and second accused are concerned, I notice the existence of allegations which would justify their indictment. **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** ## **8** 11. Even though, the learned counsel for the petitioner vehemently contended that the offences alleged against none of the petitioners are made out and, that the continuance of the proceedings before the trial court would amount to an abuse of the process of court, I am of the view that prima facie there are allegations as against first and second accused. 12. The 3[rd] accused is the sister-in-law of the defacto complainant, who was, for a certain period of time residing along with the 2[nd] accused and the defacto complainant. Despite the above, a reading of the complaint indicates that the specific allegation raised against the 3[rd] accused is with respect to the removal of the thali from the neck of the defacto complainant. However, after investigation, when the final report was laid, the said allegation is conspicuously absent. The allegation as against the 3[rd] accused is vague and **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **9** considering the totality of the circumstances, I am of the view that the proceedings against the 3[rd] accused is an abuse of the process of law. 13. Having said so, as observed by me earlier, there are sufficient allegations indicating the alleged commission of offences by the 1[st] and 2[nd] accused. However, since the 2[nd] accused has already expired, the proceedings against her has abated. As against the petitioner in Crl.M.C.No.845/2013, who is the 1[st] accused in the crime, I am of the view that this is not a fit case to quash the proceedings in exercise of the power under Section 482 of Cr.P.C. 14. Taking note of the entire circumstances, I am of the view that the proceedings in C.C.No.1912/2011 as against the 2[nd] petitioner in Crl.M.C.No.465/2013 is an abuse of the process of court and is required to be quashed. 15. Thus, while recording that the case against the 1[st] **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **10** petitioner in Crl.M.C.No.465/2013 has abated, I quash the proceedings in C.C.No.1912/2011 as against the 3[rd] accused and thus allow Crl.M.C.No.465/2013. However, Crl.M.C.No.845/2014 shall stand dismissed. Sd/BECHU KURIAN THOMAS JUDGE AMV/29/08/2022 **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **11** ## **APPENDIX OF CRL.MC 465/2013** ## **PETITIONER ANNEXURES** **ANNEXURE-A1: TRUE COPY OF THE CERTIFICATE DATED 09.01.2013 ISSUED BY DR.BABU FRANCIS, HEAD OF DEPARTMENT, NEPHROLOGY LISIE HOSPITAL, COCHIN – 18.** **ANNEXURE-A2: TRUE COPY OF THE FIR IN CR.1011/2011 REGISTERED ON 30.06.2011 BY THE SUB INSPECTOR OF POLICE, MATTANCHERRY POLICE STATION. ANNEXURE-A3: TRUE COPY OF THE COMPLAINT DATED 25.06.2011 FILED BY THE 2ND RESPONDENT BEFORE THE ASSISTANT COMMISSIONER OF POLICE, MATTANCHERRY. ANNEXURE-A4: TRUE COPY OF THE FINAL REPORT IN CR.1011/2011 OF MATTANCHERRY POLICE STATION, FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, KOCHI.** **CRL.MC NOS. 465 OF 2013 & 845 OF 2014** **12** ## **APPENDIX OF CRL.MC 845/2014** ## **PETITIONER ANNEXURES** **ANNEXURE-A1: TRUE COPY OF THE FIR IN CR.NO.1011/2011 REGISTERED ON 30.6.2011 BY THE SUB INSPECTOR OF POLICE, MATTANCHERRY POLICE STATION, AND FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI.** **ANNEXURE-A2: TRUE COPY OF THE COMPLAINT DATED 25.6.2011 FILED BY THE 2ND RESPONDENT BEFORE THE ASSISTANT COMMISSIONER OF POLICE, MATTANCHERRY. ANNEXURE-A3: TRUE COPY OF THE FINAL REPORT IN C.C. 1912/2011 (CR.NO.1011/2011 OF MATTANCHERRY POLICE STATION) PENDING ON THE FILE OF THE JUDICIAL FIRST MAGISTRATE COURT-II, KOCHI.** **ANNEXURE-A4: TRUE COPY OF THE ORDER DATED 18.1.2013 IN CRL.M.A.NO.753/2013 IN CRL.M.C.NO.465/2013 ON THE FILE OF THE THIS HON'BLE COURT.**