Dr. Anoop R. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **Crl.MC.No.4592 OF 2020(D)** **CRIME NO.1215/2019 OF NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/4TH ACCUSED:** **DR. ANOOP.R AGED 29 YEARS, S/O.DR.C.RADHAKRISHNAN, RESIDING AT USHUS, CHEMBAYAIL ROAD, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.S.CHANDRASEKHARAN NAIR SRI.RAJU GEORGE (KARUVATTA) SRI.S.GOKUL BABU** ## **- RESPONDENTS/STATE/COMPLAINANT AND DE FACTO COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - **2 STATION HOUSE OFFICER, NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM-695121.** - **3 DEEPA (DEFACTO COMPLAINANT), AGED 29 YEARS, D/O.OMANA, RESIDING AT T.C.53/728, ATTUKAL BHAVAN, RIVER GARDEN LANE, KAIMANAMPAPPANAMCODE, NEMOM, KARAMANA P.O., THIRUVANANTHAPURAM-695002.** ## **R3 BY ADV. SRI.M.R.SASITH** ## **OTHER PRESENT:** **R1 & R2 BY SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.4592 OF 2020(D) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.4592 OF 2020(D) ---------------------------------------------Dated this the 14[th] day of December, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"….........to quash Annexure-A1 FIR in Crime No.1215 of 2019 of Neyyattinkara Police Station, Thiruvananthapuram on the file of the Judicial First Class Magistrate Court-I, Neyyattinkara as against the Petitioner.”_ 2. Heard Sri.S.Chandrasekharan Nair, learned counsel appearing for the petitioner (A4), Sri. Saigi Jacob Palatty, learned Public Prosecutor, appearing for official respondents 1 &2 and Sri.M.R.Sasith, learned counsel appearing for contesting respondent No.3 (lady _de-facto_ complainant). 3. According to the petitioner, he is working as Medical Officer, National Rural Health Mission, Kulathur, Kollam District and is now preparing for admission for Post Graduation in Medical Sciences and he is not having any criminal Crl.MC.No.4592 OF 2020(D) 3 antecedents. The grievance of the petitioner is that he has been falsely implicated as A4 in the impugned Annexure A-1 FIR in crime No.1215/2019 of Neyyattinkara Police Station, Thiruvananthapuram District, for offences punishable under Secs.323, 325, 498A & 34 of the Indian Penal Code (IPC) on the basis of the First Information Statement (FIS) given by the 3[rd] respondent (lady _de-facto_ complainant) on 27.08.2019 at about 4.44 p.m. in respect of the alleged incident which happened for the period from 02.11.2015 to 08.08.2019. 4. The brief of the prosecution case is that the 3[rd] respondent (lady _de-facto_ complainant) had married A1 (brother of the petitioner herein) and that A2 & A3 father and mother of A1 and that the petitioner (A4) is the brother of A1. That, after the marriage of the abovesaid spouses, the petitioners have treated the 3[rd] respondent (lady _de-facto_ complainant) with cruelty and harassment and that they have demanded dowry, etc. and therefore committed the abovesaid offences. 5. It appears that the petitioner's brother one Sri.R.Arun, has married the 3[rd] respondent and marital disputes arose between the said spouses and that on account of the Crl.MC.No.4592 OF 2020(D) 4 differences of opinion they have been living separately. Further that the petitioner had never interfered with the family life of the 3[rd] respondent and her husband, who is the petitioner's brother, in any manner, and that in connection with his professional duties and responsibilities, he has been living separately from his brother and the 3[rd] respondent. Further that on account of serious matrimonial disputes between the abovesaid spouses, it has resulted in various litigative proceedings between them; both before the Family Court as well as other civil and criminal courts. It is further stated that the matrimonial disputes between the abovesaid spouses were settled after the intervention of mediators and an agreement was arrived at on 07.05.2018, in which A1 herein (the petitioner's brother) and the 3[rd] respondent are parties. That all gold ornaments and valuables were collected by the 3[rd] respondent lady _de-facto_ complainant against receipts and accordingly they have settled all the disputes and decided not to make any claim from each other as can be seen from Annexure A-2 agreement dated 07.05.2018, entered into by the said spouses. Annexure A-3 is the receipt dated 07.05.2018 executed by the petitioner's brother (A1 herein). That Crl.MC.No.4592 OF 2020(D) 5 thereafter, the abovesaid spouses have filed a petition for divorce by mutual consent as per O.P. No.1090/2018, filed before the Family Court, Thiruvananthapuram, copy of which has been produced as Annexure A-4 herein, etc. But that Annexure O.P. could not be decreed by the family court since the petitioner's brother (A1) had not appeared before the family court when it was posted for taking their evidence and accordingly Annexure A-4 divorce petition was dismissed on 03.02.2020. Further that Annexure A-6 is the receipt executed on 18.07.2019 by the 3[rd] respondent herein and the petitioner's brother (A1 herein) regarding receipt of the money. Earlier, at the instance of the 3[rd] respondent herein, crime No.349/2018 of Thiruvananthapuram Poojappura Police Station was registered for offence punishable under Sec.506(1) of the IPC in which A1 herein (husband of the 3[rd] respondent herein/brother of the petitioner herein) was arrayed as the sole accused therein. The Police after investigation has filed final report in the said crime which led to the institution of Calendar Case, C.C. No.626/2018 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The said Calendar Case, C.C. No.626/2018, in which the A1 herein was arrayed as the sole Crl.MC.No.4592 OF 2020(D) 6 accused therein, was sought to be quashed at the instance of A1 herein by filing Crl.M.C. No.2899/2019, filed by him before this Court. 6. Further, it appears that at the instance of A1 herein, crime No.208/2018 of Thiruvananthapuram Poojappura Police Station was registered for offences punishable under Secs.427, 324, 341, 294(b), 506(1), read with Sec.34 of the IPC, in which the father and mother of 3[rd] respondent herein as well as the 3[rd] respondent herein have been arrayed as accused 1 to 3 among the 3 accused therein, which later led to the pendency of Calendar Case, C.C. No.1320/2018, on the file of the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram. 7. The abovesaid Calendar Case, C.C. No.626/2018 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, in which A1 herein was arrayed as the sole accused at the instance of the 3[rd] respondent herein was sought to be quashed by filing the aforementioned Crl.M.C. No.2899/2019. So also, the impugned Calendar Case, C.C. No.1320/2018, on the file of the Aditional Chief Judicial Magistrate Court, Thiruvananthapuram, in which the 3[rd] respondent herein and his parents are arrayed as 3 accused Crl.MC.No.4592 OF 2020(D) 7 therein at the instance of A1 herein who is the _de-facto_ complainant therein was sought to be quashed by the accused persons therein by filing Crl.M.C. No.3281/2019. 8. This Court has passed common order dated 14.06.2019, as per Annexures A-7 & A-8, whereby the abovesaid Crl.M.C. Nos.2899/2019 & 3281/2019 has been disposed of, by taking note of the submissions made by both sides that the entire disputes between the said rival parties have been settled. Accordingly this court had quashed the entire criminal proceedings pertaining to C.C.Nos.1320/2018 & C.C.No. 626/2018, both on the file of the Additional Chief Judicial Magistrate's Court, Thirvananthapuram since the abovesaid crimes were registered primarily on account of matrimonial disputes between the 3[rd] respondent herein and her husband (A1 herein). 9. The abovesaid common order at Annexures A7 & A8 was rendered by this court on 14.06.2019. Thereafter it appears that Annexure A-4 divorce petition O.P.No.1090/2018 filed on the basis of mutual consent had come up for consideration before the Family Court, Thiruvananthapuram. Since A1 herein had not attended to the said court when it was posted for Crl.MC.No.4592 OF 2020(D) 8 evidence, the Family Court had dismissed Annexure A-4 O.P.No.1090/2018 on 03.02.2020. It is stated that as the petitioner's brother was away in connection with the employment, he could not attend to the family court and which was initially dismissed on 28.12.2018. Later it appears that A1 herein has filed Annexure A5 petition dated 28.02.2019 before the family court Thiruvananthapuram for setting aside the dismissal order dated 20.12.2018 and to restore O.P.No.1090/2018 for appearance of the parties etc. From the submissions made by learned Advocates on both sides, it appears that the said Annexure A-4 O.P. initially dismissed for default was later restored to file and subsequently, due to the non-appearance of A1 herein, the said Annexure A-4 O.P. No.1090/2018 was dismissed by the Family Court, Thiruvananthapuram, as per judgment dated 03.02.2020. 10. From the records it appears that in the meanwhile, the 3[rd] respondent herein has lodged Annexure A-1 FIS on 27.08.2019, which led to the registration of Annexure A-1 Crime No.1215/2019 of Neyattinkara Police Station, for the offence punishable under Sec.498A of the IPC. 11. The learned counsel appearing for the petitioner Crl.MC.No.4592 OF 2020(D) 9 would point out that the petitioner herein (A4) has been unnecessarily dragged in respect of the matter in Annexure A-1 FIR only on account of the difference of opinion between the 3[rd] respondent herein and her husband (petitioner's brother). 12. Further, counsel for the petitioner would point out that the allegations raised against the petitioner herein (A4) in Annexure A-1 FIS are rather vague and generalised and does not make out any specific case against him, etc. On being querried as to the precised nature of the allegations raised as against the petitioner herein (A4) in Annexure A-1 FIR, Sri.M.R.Sasith Panicker, learned counsel appearing for the 3[rd] respondent herein would submit that one of the allegations raised against the petitioner (A4) is that on account of the 3[rd] respondent herein not agreeing to sell her property to finance the construction of a 'Kalyanamandapam' by the petitioner herein, he used to speak to her in bad and abusive manner on quite a few occasions. Yet another complaint raised against him in Annexure A-1 is that all the 4 accused persons used to demand that the 3[rd] respondent herein should bring in extra dowry amounts and that thereby all the 4 accused persons have committed the abovesaid offence. Crl.MC.No.4592 OF 2020(D) 10 13. After hearing both sides, this Court is of the considered view that the abovesaid allegations are rather vague and generalised. Further that the specific allegation is that the petitioner used to speak to the 3[rd] respondent in a bad and abusive manner as she did not accede to the request to sell off her property in order to help the petitioner to construct a 'Kalyanamandapam'. 14. The other allegations is that all the 4 accused persons had demanded the 3[rd] respondent to bring in more dowry and that thereby the petitioner has also committed the abovesaid offence. The latter allegation is quite vague and generalised. Further that the other allegations cannot be said to be one which would involve disclosure of cruelty to such an extent as understood in Explanation of Sec.498A of the IPC, so as to hold that it would have been all likelihood driven the victim woman to commit suicide. 15. Sec.498A of the IPC including the explanations thereto 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._ Crl.MC.No.4592 OF 2020(D) 11 _Explanation.— For the purposes 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.]_ ## 16. The Apex Court in the decision _**Giridhar Sankar**_ ## _**Tawade v. State of Maharashtra**_ [2002 (5) SCC 1777] has held in paragraph No.3 thereof as follows:- _"The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A."_ 17. Further their Lordship of the Supreme Court in the case in _**Gurnim Singh v. State of Punjab**_ [(2013) 7 SCC 108] has held that clause (a) of the explanation to Sec.498A Crl.MC.No.4592 OF 2020(D) 12 defines cruelty to mean any willful conduct which is of such a nature as is likely to drive the woman to commit suicide and clause (b) of the explanation pertains to unlawful demand and clause (a) can take in its ambit mental cruelty. Further the Apex Court in the decision in _**Ghusabhai Rasiangbhai Chorasiya & Ors. v. State of Gujarat**_ [(2015) 11 SCC 753], has held in paragraph No.18 thereof that the 1[st] limb of Sec.498A refers to cruelty as nothing to do with the demand of dowry, etc. Further, very crucially it has to be borne in mind that earlier the 3[rd] respondent had set in motion the registration of Crime No.349/2018 of Thiruvananthapuram Poojappura Police Station, for offences punishable under Secs.506(i) of the IPC, in which A1 herein has been arrayed as the sole accused therein. At that time, the 3[rd] respondent did not raise any complaints that the petitioner herein has committed any of the acts now alleged in Annexure A-1 FIR. 18. The crime in which the 3[rd] respondent herein and the parents were arrayed as accused at the instance of A1 herein as well as the crime in which the husband of the 3[rd] respondent has been arrayed as accused, etc., has been quashed by this Court as per Annexures A-7 & A-8 common order dated Crl.MC.No.4592 OF 2020(D) 13 14.06.2019, rendered by this Court in Crl.M.C. Nos.2899/2019 & 3281/2019. 19. Further it appears that Annexure A-4 Original Petition for divorce on the basis of mutual consent was initially dismissed on account of the non-appearance of A1 herein, as per order dated 20.12.2018, about which reference is made in Annexure A-5 application. Thereafter, A-1 herein has filed Annexure A-5 application dated 28.02.2019 for setting aside the said dismissal order dated 20.12.2018 in respect of Annexure A- 4 Original Petition. The impugned Annexure A-1 FIS has been lodged by the 3[rd] respondent herein on 27.08.2019. From the submissions of both sides it appears that later the Family Court has restored Annexure A-4 O.P. and still further A1 herein had not attended to the Family Court, which led to the dismissal of Annexure A-4 O.P. as per judgment dated 03.02.2020, rendered by the Family Court, Thiruvananthapuram. 20. The learned counsel appearing for the petitioner would point out that the entire disputes between the rival spouses were settled, and that the petitioner herein has no control over his brother or the 3[rd] respondent and that it appears that unreasonable demands were made by the 3[rd] Crl.MC.No.4592 OF 2020(D) 14 respondent herein even after the settlement with the result that A1 herein had not appeared before the Family Court in the divorce petition, which would have pre-heated animosity the mind of he 3[rd] respondent, etc. 21. From the stand taken by the rival parties in Annexures A-7 & A-8 common order rendered by this Court on 14.06.2019, it can be seen that the parties have arrived at a settlement and the impugned criminal proceedings as against each other was quashed by this Court at the instance of on the basis of the settlement arrived at between them. It may be that A1 herein and the 3[rd] respondent herein may be having may be having other issues between them and therefore, the petitioner herein (A4 herein), who happens to be the brother of A1 cannot be made to suffer any further. The learned counsel appearing for the petitioner would point out that the petitioner (A4) is a Medical Graduate, who is working as a Medical Officer and he is seeking for Post Graduate admission and that his marriage was fixed and also he had taken steps to take a passport and it is only at that time that he could come to know that he has been implicated as A4 in Annexure A-1 FIR. The learned counsel appearing for the petitioner would further point out that it is Crl.MC.No.4592 OF 2020(D) 15 only on account of the animosity of the 3[rd] respondent herein as against her husband that the petitioner is suffering as his marriage could not be conducted and he could not secure his passport on account of the pendency of Annexure A-1 crime. More importantly, it has to be borne in mind that the present allegations as against the petitioner herein (A4) were never raised by the 3[rd] respondent herein at the time when she had lodged the FIR in relation to Annexure A-8 FIR in crime No.349/2018 of Poojappura Police Station in which A1 herein was arrayed as the sole accused therein. 22. On account of the continuing disputes between the 3[rd] respondent herein and A1 herein, the petitioner is made to suffer to face the impugned criminal proceedings which is nothing but abuse of the process of the Court. 23. Hence, this Court is of the considered view that the inherent extraordinary powers conferred on this Court under Sec.482 of the Cr.P.C. would be befittingly invoked to the facts and circumstances of the case. In that view of the matter it is ordered that the impugned Annexure A-1 FIR in crime No.1215/2019 of Neyyattinkara Police Station, to the limited extent it is directed as against the petitioner herein (A4) and all Crl.MC.No.4592 OF 2020(D) 16 consequential proceedings arising therefrom to the limited extent, it is directed as against the petitioner herein (A4) will stand quashed and set aside. 24. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class Magistrate Court-I, Neyyattinkara, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand disposed. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//20112020 Crl.MC.No.4592 OF 2020(D) 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF THE FIR IN CRIME NO.1215**| |---|---| ||**OF 2019 NEYYATTINKARA POLICE STATION DATED**| ||**27.08.2019.**| |**ANNEXURE A2**|**TRUE COPY OF THE AGREEMENT DATED**| ||**07.05.2018 EXECUTED BETWEEN THE 1ST**| ||**ACCUSED/BROTHER OF THE PETITIONER WITH 3RD**| ||**RESPONDENT.**| |**ANNEXURE A3**|**TRUE COPY OF THE RECEIPT DATED 07.05.2018**| ||**EXECUTED BY THE 3RD RESPONDENT.**| |**ANNEXURE A3(A)**|**TRUE COPY OF THE RECEIPT DATED 07.05.2018**| ||**EXECUTED BY THE BROTHER OF THE**| ||**PETITIONER/1ST ACCUSED.**| |**ANNEXURE A4**|**TRUE COPY OF THE OP.NO.1090/2018 FILED**| ||**BEFORE**<br>**THE**<br>**FAMILY**<br>**COURT,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE A5**|**TRUE COPY OF THE PETITION (I.A.NO.NOT**| ||**ENTER**<br>**IN**<br>**O.P.NO....2019)**<br>**IN**| ||**OP.NO.1090/2018 DATED 28.02.2019.**| |**ANNEXURE A6**|**TRUE COPY OF THE RECEIPT EXECUTED ON**| ||**18.07.2019 BY THE 3RD RESPONDENT AND THE**| ||**BROTHER OF THE PETITIONER, THE 1ST ACCUSED**| ||**REGARDING THE RECEIPT OF MONEY.**| |**ANNEXURE A7**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**<br>**IN**| ||**CRL.M.C.NO.2899/2019 DATED 14.06.2019 OF**| ||**HON'BLE HIGH COURT OF KERALA.**| |**ANNEXURE A8**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**<br>**IN**| ||**CRL.M.C.NO.3281/2019 OF HON'BLE HIGH COURT**| ||**OF KERALA, DATED 14.06.2019.**| **RESPONDENTS' EXHIBITS: nil**