Crl.MC.No. 8143 of 2016

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **Crl.MC.No. 8143 of 2016** **CRIME NO. 82/2016 OF AROOR POLICE STATION, ALAPPUZHA DISTRICT** ## **PETITIONERS/ACCUSED NOS.1 TO 3:** - **1 JOHN SIMIL K.A., S/O. K.G.AUGUSTINE, AGED 35 YEARS, KADANAMPARAMBIL HOUSE, ERAMALLOOR P.O, CHERTHALA, PIN-688 537.** - **2 AUGUSTINE K.G. S/O.GEORGE AGED 72 YEARS, KADANAMPARAMBIL HOUSE, ERAMALLOOR P.O, CHERTHALA, PIN-688 537.** - **3 SMT. VALSA, W/O.AUGUSTINE K.G., AGED 66 YEARS, KADANAMPARAMBIL HOUSE, ERAMALLOOR P.O, CHERTHALA, PIN-688 537.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.MANJUNATH MENON SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.R.GITHESH SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS/COMPLAINANT:** - **1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 SMT. RADHYA MERI PRIYADARSINI, D/O.K.J. RAPHI, KANNAMPUZHA HOUSE, TRISSUR EAST P.O., PIN -680 005.** **R1 BY SMT.K.SHEEBA, PUBLIC PROSECUTOR R2 BY ADVS. SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 8143 of 2016** **2** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The 1[st] petitioner herein is the son of petitioners 2 and 3. They are the accused in C.C.No.1453 of 2017 pending on the file of the Judicial Magistrate of the First Class-II, Cherthala. In the aforesaid case, they face indictment under Section 498A read with Section 34 of the Indian Penal Code. 3. The 2[nd] respondent is the wife of the 1[st] petitioner. On 18.01.2016, she filed a complaint before the District Police Chief, levelling allegations of physical and mental abuse against the petitioners and she sought for initiation of criminal action. Crime No.82 of 2016 was registered at the Aroor Police Station under Section 498A r/w. Section 34 of the IPC. This culminated in the filing of a final report before the court below. Cognizance was taken and the case is now pending as C.C.No.1453 of 2017 on the file of the Judicial Magistrate of the First Class-II, Cherthala. 4. The eventful backdrop as is revealed from the prosecution records shows that the 1[st] petitioner married the 2[nd] respondent on **Crl.MC.No. 8143 of 2016** **3** 30.4.2007 and they lived together in the matrimonial home of the petitioners at Eramallor. Huge sums of money by way of cash and gold ornaments were allegedly entrusted with the petitioners. The spouses were well qualified. Immediately after marriage, the petitioners raised demand for dowry and when the same was not handed over, the 2[nd] respondent was subjected to ill treatment. Though she became pregnant, no consideration for the same was given to her. She delivered a child on 18.10.2008. Fed up with the harassment and left with no alternative, the parents of the 2[nd] respondent took her back to her parental home in the month of July, 2009, and she stayed with them for about a year. Later, a settlement was arrived at and she went back with the petitioners. However, they continued with their ill treatment. As the 2[nd] respondent was unable to withstand the inhuman behaviour of the petitioners, she left the matrimonial home on 12.10.2013. She alleges that the gold ornaments, certificates etc. are still retained with the petitioners. Thereafter, at the instance of the mediators, the parties decided to file a joint petition for divorce. The 1[st] petitioner agreed to hand over the custody of the child to the 2[nd] respondent and to return the valuables. Though a petition for divorce by mutual consent was filed, due to technical reasons, the same was dismissed. Thereafter, she filed a petition seeking **Crl.MC.No. 8143 of 2016** **4** maintenance before the Family Court, Thrissur. The 1[st] petitioner, as a counterblast, filed a petition under the Guardians and Wards Act, 1890 seeking permanent custody of the minor child. Under the pressure exerted by the father of the 2[nd] respondent, she entered into a compromise and she agreed to grant the custody of the child to the 1[st] petitioner. However, against the terms of the agreement, she was prevented from interacting with the child. She also alleges in the complaint that she has a genuine apprehension that the minor daughter was subjected to abuse by the 1[st] petitioner. On these allegations a complaint was lodged and the subject crime was registered. Later, the investigation was completed and a final report was laid before the jurisdictional Magistrate. 5. Sri.S.Sreekumar, the learned Senior counsel appearing for the petitioners, as instructed by Sri.P.Martin Jose, submitted that the 2[nd] respondent, with a view to harass the petitioners, have suppressed the entire facts which she knew to be false, in order to register a false crime against them. He would contend that the allegations are all in relation to certain incidents which took place immediately after the marriage. However, it is pointed out that the parties with the junction of their relatives had buried the hatchet and they had decided to part **Crl.MC.No. 8143 of 2016** **5** ways. The monetary aspects were all settled and the 2[nd] respondent had issued receipts acknowledging the same. The custody of the minor child was handed over to the 1[st] petitioner as a part of the compromise. Divorce petitions were twice filed and in those petitions, the victim has no case that there was any harassment or ill treatment on the part of the petitioners. According to the learned Senior counsel, after having settled the entire disputes, including demand for maintenance and past maintenance, and after having handed over the custody of the child in proceedings over seen by the Family Court, the 2[nd] respondent had a change of mind and approached the Family Court to modify the order granting custody. When relief was not granted by the Family Court, she, in a vindictive and spiteful manner, has ventured to institute prosecution proceedings. According to the learned Senior counsel, though Section 498A was enacted to check unconscionable demands by greedy husbands and their families and to prevent cruelty to women, this is a classic case of abuse of the provisions. He would also refer to the lodging of the complaint alleging that the petitioners had sexually abused his minor daughter and the subsequent filing of refer report by the police after intervention by this Court. According to the learned Senior counsel, the extent to which the de facto complainant is prepared to proceed **Crl.MC.No. 8143 of 2016** **6** with a view to harass the petitioners is clearly evident from the said complaints. The entire proceedings are an abuse of process and is liable to be quashed, contends the learned Senior counsel. 6. Sri.Ramesh Chander, the learned Senior counsel appearing for the 2[nd] respondent, has strenuously opposed the prayer. It is submitted that though the powers under Section 482 of the Cr.P.C. is wide, it has to be exercised with great caution. According to the learned Senior counsel, the powers are not to be exercised to stifle a legitimate prosecution. It was urged that it would not be proper for this Court to analyse the case of the complainant in the light of all probabilities to determine whether a conviction would be sustainable. Only in those cases, where the complaint does not disclose any offence or is frivolous, vexatious or oppressive that this Court will be justified in interfering with the same, in exercise of powers under Section 482 of the Code. The petitioners have not been able to point out even a single circumstance necessitating the invocation of the extraordinary powers, contends the learned Senior counsel. Referring to the complaint lodged by the 2[nd] respondent before the District Police Chief and also the materials in the final report, it is submitted that the ingredients of the offence are clearly made out. **Crl.MC.No. 8143 of 2016** **7** 7. I have heard the learned Public Prosecutor and have perused the records. 8. Section 498A was inserted in the Statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife, particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury, mental or physical, or danger to life or harassment with a view to coerce her to meet unlawful demand. It has been observed by the Apex Court in **Preeti Gupta and Another v. State of Jharkhand and Another** [(2010) 3 SCC (Crl) 473] that it is a matter of common knowledge that most of the complaints under Section 498A of the IPC are filed in the heat of the moment over trivial issues without proper deliberations. It was also observed that large number of complaints are filed without any bonafides and with oblique motives. Exaggerated versions of minor incidents are stated by the complainant to ensure that the husband and family members are roped in for non bailable offences. At the same time, there has also been a rapid increase in the number of genuine cases of dowry **Crl.MC.No. 8143 of 2016** **8** harassment. In view of the above, the courts have been cautioned to be extremely careful and cautious in dealing with these cases. Courts are expected to take note of pragmatic realities into consideration while dealing with matrimonial cases. 9. Now if the facts in the instant case are perused in its intricate detail, it would be evident that the marriage between the parties was solemnized in the year 2007. They have a daughter. The records reveal that as early as on 23.12.2013, the 1[st] petitioner and the 2[nd] respondent approached the Family court, Thrissur and filed a petition for divorce by mutual consent under Section 10A of the Divorce Act, 1869. In the said petition, it is stated in unequivocal terms that a child was born on 18.10.2008 and thereafter, the relationship between the parties became strained. It has also been stated that there has never been any cohabitation between the parties for the past three years. Annexure-B receipt, which is dated 23.12.2013, issued by the 2[nd] respondent in favour of the 1[st] petitioner would show that on the date of filing of the divorce petition, the gold, cash and movables were returned by the 1[st] petitioner to his wife. The 2[nd] respondent had no case, at any point of time, that she was subjected to cruelty or harassment. The petition for divorce by mutual **Crl.MC.No. 8143 of 2016** **9** consent was dismissed on technical reasons. It appears that on 20.05.2014, the 1[st] petitioner filed a petition under the Guardians and Wards Act, 1890 as O.P.No.648 of 2014 seeking permanent custody of the child, who was then aged 5 ½ years. In the said petition, he levelled serious allegations against the 2[nd] respondent. He contended that the 2[nd] respondent was having an affair with some other man and she is not a fit person to have the custody of their daughter. The 2[nd] respondent, on the other hand, filed a petition seeking maintenance as M.C.No.134 of 2014 and another petition as O.P.No.402 of 2014 seeking past maintenance. While these petitions were pending, the parties were able to negotiate and come to a settlement. They then filed Annexure-F petition numbered as O.P.No.213 of 2015 before the Family Court, Thrissur seeking a decree of divorce by mutual consent. In the said petition, it has been unambiguously stated that the relationship has irretrievably broken down and there is no chance for reunion. In the same petition, it has been mentioned that her claims in M.C.No.134 of 2014 and O.P.No.402 of 2014 stand satisfied. It has also been stated that the 2[nd] respondent has no objection in allowing the petition for permanent custody being handed over to the 1[st] petitioner herein. As agreed between the parties, all the pending petitions were recorded as settled and this fact is evident from **Crl.MC.No. 8143 of 2016** **10** Annexures-D, E and G. It is thereafter that the 2[nd] respondent approached the Family Court and sought modification of the compromise order. Her prayer was to grant permanent custody of the minor child to her. The contentions were considered in detail and the Family Court by Annexure-H order dated 13.8.2015, dismissed the petition. While dismissing the petition, in paragraph No. 14, it was held as follows by the court below. “14.…………. The parties are well educated, they understood their respective positions in the life and have taken a decision in the compromise. Before drying up of the ink in the signature in the compromise, the petitioner approached this Court for modification of the order. I find, it is an abuse of process of court.” (sic) 10. After dismissal of the above petition, separate complaints were laid before the police seeking initiation of criminal proceedings. The first complaint was filed before the District Police Chief on 18.01.2016 alleging acts of matrimonial cruelty. The acts of cruelty were all allegedly committed immediately after the marriage and much prior to 23.12.2013, on which day, the first petition for divorce by mutual consent was filed before the Family Court. Immediately thereafter, another complaint was lodged on 29.01.2016 alleging that the 1[st] petitioner sexually abused his minor daughter. **Crl.MC.No. 8143 of 2016** **11** 11. The 1[st] petitioner, apprehending that his minor daughter would be taken away from his possession, approached this Court and had filed W.P.(C) No.3459 of 2016 seeking to interdict the respondents therein from taking the custody of the child before completing the investigation. This Court directed the 1[st] petitioner to produce the child before court and interacted with the child. The learned Single Judge, after interacting with the child in open court, came to the conclusion that the child was being used by her parents for achieving their ends. This Court permitted the 1[st] petitioner to have the custody of the child and the police were ordered to conduct an honest and sincere investigation. The police after investigation, filed Annexure-K refer charge on 3.10.2016. 12. Thus the sequence of events would show that the complaint under Section 498A was filed after the entire disputes were settled and the custody of the minor child was granted to the 1[st] petitioner. On goring through the complaint, it is evident that what has been highlighted are incidents which took place in the year 2007, immediately after the marriage and thereafter till 2010, by which time their relationship had become unduly strained. Several proceedings were pending before the Family Court from the year **Crl.MC.No. 8143 of 2016** **12** 2013 onwards and numerous orders have been passed as per the terms of the mediation entered into between the parties. However after settling the disputes and granting custody of the minor child to the 1[st] petitioner, the 2[nd] respondent had a change of mind. The petition to modify the order granting custody of the minor child was repelled by the jurisdictional Family court. The records would show that the 2[nd] respondent had even filed a complaint alleging that the 1[st] petitioner had abused their minor daughter. It is undisputed that these allegations are raised for the first time only after the settlement of all disputes. The conclusion is inescapable that the intention of the 2[nd] respondent was to harass the petitioners herein by getting a crime registered against them in a mala fide manner. The police were expected to conduct a thorough investigation to ascertain the genuineness of the allegations, particularly when they had referred the case alleging child molestation as false. On going through the final report, it is evident that the investigation was conducted in a perfunctory manner. What has been stated in the charge is that 82 sovereigns of gold and a sum of Rs.2.25 lakhs entrusted with the petitioners were misappropriated by them. As a matter of fact, the entire valuables and cash were all handed over back to the 2[nd] respondent as early as on 23.12.2013 and this fact is evident from **Crl.MC.No. 8143 of 2016** **13** Annexure-B receipt. It would be far fetched to believe that the 2[nd] respondent would come forward to settle all monetary disputes and withdraw her claims for maintenance and past maintenance and agree to grant permanent custody of the minor child, if she had a grievance that she was subjected to cruelty and harassment. 13. Now the question is whether this Court would be justified in interfering with the proceedings by exercising its powers under Section 482 of the Cr.P.C. The contours of jurisdiction of this Court while exercising the said power have been elaborately dealt with by a three Judge Bench of the Apex Court in **Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors** . [AIR 2008 SC 251] and it was held that the High Court has inherent power to act ex debito justitiae to do real and substantial justice for the administration of which alone, the court exists, or to prevent abuse of the process of the court. Inherent powers of the court can be exercised in the following categories of cases: “(i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.” 14. Thus, the inherent powers under Section 482 of the Cr.P.C. **Crl.MC.No. 8143 of 2016** **14** though wide, have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 15. The Hon’ble Supreme Court in **State of Karnataka v. L. Muniswamy and Ors.** [1977 Crl.LJ 1125] observed that the wholesome power under Section 482 of the Cr.P.C. entitles the High Court to quash a proceeding when it comes 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 vested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Apex Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. **Crl.MC.No. 8143 of 2016** **15** ## 16. In **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors** . [1988 Crl.LJ 853], it was observed in paragraph No. 7 as under: “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” 17. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. I am of the considered view that the criminal proceeding initiated against the petitioners is manifestly attended with malafide and instituted with ulterior motive for wrecking vengeance after settling all the disputes. It is, therefore, well covered under the Guidelines 1 and 7 laid down **Crl.MC.No. 8143 of 2016** **16** by the Supreme Court in the matter of **State of Haryana v. Bhajan Lal** [(1992) Supp. 1 SCC 335] which read as under: “1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima- facie constitute any offence or make out a case against the accused. xxx xxx xxx 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 18. For the aforementioned reasons, I hold that the continuance of the proceedings against the petitioners is an abuse of the process of the Court. In the result, this petition will stand allowed. Annexure-N final report and all proceedings pursuant thereto against the petitioners in C.C.No. 1453 of 2017 on the file of Judicial First Class Magistrate Court-II, Cherthala, are quashed. **SD/-** DSV/16.2.19 **RAJA VIJAYARAGHAVAN V., JUDGE** //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 8143 of 2016** **17** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE-A**|**TRUE COPY OF JOINT PETITION IN OP**| |---|---| ||**NO.1997/2013 DATED 23.12.2013 BEFORE THE**| ||**FAMILY COURT, THRISSUR.**| |**ANNEXURE-B**|**TRUE COPY OF RECEIPT DATED 23.12.2013**| ||**ISSUED BY THE 2ND RESPONDENT FOR RECEIPT OF**| ||**GOLD ORNAMENTS.**| |**ANNEXURE-C**|**TRUE COPY OF COMPROMISE PETITION IN OP**| ||**NO.648/2014 FILED BEFORE THE FAMILY COURT,**| ||**THRISSUR.**| |**ANNEXURE-D**|**TRUE COPY OF ORDER IN M.C.NO.134 OF 2014**| ||**DATED 19.02.2015 OF FAMILY COURT, THRISSUR.**| |**ANNEXURE-E**|**TRUE COPY OF ORDER IN O.P.NO.402 OF 2014**| ||**DATED 19.02.2015 OF FAMILY COURT, THRISSUR.**| |**ANNEXURE-F**|**TRUE COPY OF JOINT PETITION IN OP NO.213 OF**| ||**2015 DATED 16.02.2015 OF FAMILY COURT,**| ||**THRISSUR.**| |**ANNEXURE-G**|**TRUE COPY OF ORDER DATED 19.02.2015 IN OP**| ||**NO.648/2014 FILED BEFORE THE FAMILY COURT,**| ||**THRISSUR.**| |**ANNEXURE-H**|**TRUE COPY OF I.A.NO.1293/2015 IN**| ||**OP.648/2014 DATED 13.08.2015 OF FAMILY**| ||**COURT, THRISSUR.**| |**ANNEXURE-I**|**TRUE COPY OF ORDER IN WPC NO.3459/2016**| ||**DATED 28.01.2016 OF THIS HON'BLE COURT.**| |**ANNEXURE-J**|**TRUE COPY OF ORDER IN WPC NO.3459/2016**| ||**DATED 22.02.2016 OF THIS HON'BLE COURT.**| |**ANNEXURE-K**|**TRUE COPY OF REFER REPORT ON 03.10.2016.**| |**ANNEXURE-L**|**TRUE COPY OF COMPLAINT DATED 18.01.2016**| ||**FILED BY THE 2ND RESPONDENT BEFORE THE**| ||**DISTRICT POLICE CHIEF, ALAPPUZHA.**| |**ANNEXURE-M**|**TRUE COPY OF FIR IN CRIME NO.82 OF 2016 OF**| ||**AROOR POLICE STATION.**| **Crl.MC.No. 8143 of 2016** **18** **ANNEXURE-N THE COPY OF FINAL REPORT DATED 10.08.2016 IN FIR IN CRIME NO.82 OF 2016 OF AROOR POLICE STATION.** ## **RESPONDENT'S/S EXHIBITS:** **//TRUE COPY//** **P.A.TO JUDGE**