Dr. Shahul Hameed Aboobacker and Nazeema Aboobacker v. State of Kerala and Dr. Basima Amathu Rahim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938** ## **Crl.MC.No. 3790 of 2016** ## **------------------------** ## **F.I.R. NO. 260/2016 OF CHERPULASSERY POLICE STATION, PALAKKAD .....** **PETITIONER(S)/ACCUSED 1 & 2: ---------------------------** ## **1. DR.SHAHUL HAMEED ABOOBACKER,** **AGED 29 YEARS, S/O.DR. ABOOBACKER, RESIDING AT PUTHIYAVEETIL HOUSE, THIRUVATRA PO, CHAVAKKADU TALUK, THRISSUR DISTRICT** ## **2. NAZEEMA ABOOBACKER,** **AGED 55 YEARS, W/O.DR.ABOOBAKER, RESIDING AT PUTHIYAVEETIL HOUSE, THIRUVATRA P.O., CHAVAKKADU TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.PREMCHAND R.NAIR SRI.GEORGE BRISTON** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **----------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY CIRCLE INSPECTOR OF POLICE, CHERUPLASSERY, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31.** **2. DR. BASIMA AMATHU RAHIM,** **D/O.ABDUL JABBAR, AGED 25, RESIDING AT CHOONDATHODY HOUSE, EZHUVATHALA, NELLAYA, CHERUPULASERY, PALAKKAD DIST, PIN 679 335.** **R1 BY GOVERNMENT PLEADER SRI.C.N.PRABHAKARAN R2 BY ADV. SRI.BABU S. NAIR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** **Crl.MC.No. 3790 of 2016** ## **-----------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **-------------------------** **ANNEXURE A TRUE COPY OF THE FIR NO. 260/2016 DATED 17/3/2016 OF CHERUPULASSERY POLICE STATION** **ANNEXURE B TRUE COPY OF THE PETITION DATED 27.02.2016 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPPALAM** **ANNEXURE C TRUE COPY OF THE OFFER LETTER ISSUED FROM ARAB STARS EST** **RESPONDENT(S)' ANNEXURE** **-----------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **RAJA VIJAYARAGHAVAN.V, J** **---------------------------------------Crl.M.C. No.3790 of 2016** **----------------------------------------Dated this the 5th day of January, 2017** ## **O R D E R** - 1.This petition is filed under section 482 of the Code of Criminal Procedure . - 2.The petitioners herein are the accused Nos. 1 and 2 in Crime No. 260 of 2016 of the Cherplaserry Police Station. The aforesaid crime has been registered alleging offenses punishable under section 498 (A) of the IPC at the instance of the 2[nd] respondent , the former wife of the 1[st] petitioner. - 3.Essential facts necessary for disposal of this petition are that the marriage between the 1[st] petitioner and the 2[nd] respondent was solemnized on 9-5-2015. Both are medical professionals . The 2[nd] respondent resided in the matrimonial home for about 1 ½ months . Later they flew Crl.M.C.3790/2016 2 to Sharjah and resided there for 3 months . Their intention was to work briefly in the clinic run by the father of the 1[st] petitioner at Sharjah. They returned back to India in the month of September, 2015. At the time of marriage, 100 sovereigns of gold and Rs. 25 lakhs by way of cash was handed over to the 1[st] petitioner. After returning back to India , the 1[st] petitioner demanded a sum of Rs 50 lakhs for commencement of a business. When the said demand was not complied with, the 2[nd] respondent was sent back home. Specific allegation is raised that the 2[nd] respondent was mentally harassed by the 1[st] petitioner. The 2[nd] petitioner is also alleged to have taunted the 2[nd] respondent. According to the 2[nd] respondent for the failure of her parents to hand over the sum demanded , the 1[st] petitioner pronounced talaq . She was 6 months pregnant at that time . - 4.The learned counsel for the petitioners submits that the allegations are all false and they have been falsely Crl.M.C.3790/2016 3 implicated. Specifically referring to the allegations against the 2[nd] petitioner, it is contended that the offence under Section 498A of the IPC is not made out. It was vehemently argued that the 2[nd] respondent was suffering from an incurable form of chronic psychiatric disorder and she was under treatment for several years. This fact was suppressed from the petitioners herein. Though an attempt was made to treat the same, the efforts were in vain. According to the learned counsel, it was after noticing that there was very less chance of a permanent recovery on account of the chronic nature of the ailment that the 1[st] petitioner was forced to pronounce talaq. The learned counsel also would refer to the complaint filed by the 2[nd] respondent under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and would incisively contend that the allegations in the FI Statement and that in the complaint are contradictory inter se. According to the learned Counsel , the attempt of the 2[nd] respondent is Crl.M.C.3790/2016 4 to harass the petitioners herein and to extract huge sums from them . It is contended that the continuance of criminal proceedings is clearly an abuse of process and sought for quashing the FIR and all further proceedings. - 5.The learned Public Prosecutor on instructions refutes the submissions of the learned Counsel and submits that the investigation conducted reveals the complicity of the petitioners. No reasons are warranted to quash the proceedings at this stage is the submission. - 6.The learned Counsel appearing for the 2[nd] respondent would counter the submissions and would contend that the powers of this Court under section 482 of the Code , though extraordinary and wide , should be exercised only in the rarest of cases . Referring to the statement of the 2[nd] respondent , it is submitted that the contentions raised by the learned counsel based on uncorroborated materials cannot be considered by this Court at this stage . The investigation is at the early stages and there is no reason Crl.M.C.3790/2016 5 warranting interference is the submission. 7.Terminating criminal proceedings at the threshold itself, or at the stage of FIR is to be exercised only in the rarest of rare cases and with great circumspection. The Apex Court in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice. 8.In **R. Kalyani v. Janak C. Mehta and Others** [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in exercise of powers under Section 482 will be justified in Crl.M.C.3790/2016 6 ## quashing the FIR. In paragraph Nos. 14 and 15 it was held as follows: 14. However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held : "36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage." 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR Crl.M.C.3790/2016 7 disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” Same view was taken in **Kurukshetra University v. State of Haryana** [1977 (4) SCC 451], and in **Som Mittal V Government of Karnataka** [2008 (3) SCC 574]. 9.After having bestowed my anxious considerations to the submissions and contentions and after having tested them in the light of the binding and illuminating precedents of the Apex Court, I am of the view that the petitioners have failed to make out a case for quashing the criminal proceedings at the threshold itself. The submissions made at the Bar relate to disputed questions of fact which cannot be adjudicated by this Court under Section 482 of the Code of Criminal Procedure. This Court will not be Crl.M.C.3790/2016 8 justified in embarking upon an enquiry to determine whether the allegations in the complaint are likely to be established by evidence. I am of the view that no interference is warranted at this stage. The investigating officer shall take specific notice of the contentions raised by the petitioners and investigate the case in a meticulous manner and file appropriate report before court. In the result, this petition will stand dismissed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps