GANGA A. v. STATE OF KERALA and SHINY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934** ## **Crl.MC.No. 1674 of 2012 ()** **-------------------------CC.815/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA** ## **PETITIONER/ACCUSED:** **--------------------------------** **GANGA A., W/O.RAJESHKUMAR K.R, KOCHUPURAYIL HOUSE, KANNAMANGALAM NORTH, CHETTIKULANGARA P.O., MAVELIKKARA.** ## **BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT** ## **RESPONDENT/STATE/COMPLAINANT:** **------------------------------------------------------** **1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. SHINY, D/O.SARADA,** **SREYASS VEEDU, SOORANADU NORTH VILLAGE SOORANAD P.O, KOLLAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR, SMT. R. REMA R2 BY ADV. SRI.R.SURAJ KUMAR BY ADV. SRI.M.KISHORKUMAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 1674 of 2012 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **ANNEXURE I: A TRUE COPY OF THE CHARGE SHEET DTD.06/07/2007.** ## **RESPONDENT'S ANNEXURE: NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **S.S.SATHEESACHANDRAN, J.** ## **----------------------------------------------Crl.M.C No.1674 OF 2012 ------------------------------------------------------Dated this the 3[rd] day of September, 2012** ## **ORDER** Petitioner is one among the accused (A3) in a pending case before the Judicial First Class Magistrate Court, Sasthamcotta. She is being prosecuted with her mother and brother for the offence punishable under Section 498(A) r/w Section 34 of Indian Penal Code on a report filed by the Sub Inspector of Police, Sooranad Police Station. The de facto complainant/second respondent alleged of matrimonial cruelty and harassment by her husband, his mother and sister, and the crime registered thereof after investigation has led to the report as aforesaid indicting the accused persons, three in number, for the offence under Section 498(A) of Indian Penal Code. Petitioner has filed the above petition to quash the criminal proceedings against her contending that such proceedings are abuse of process of the court. Crl.MC No.1674/2012 2 2. Notice given, the second respondent has entered appearance through counsel. I heard the counsel on both sides. 3. With the petition a copy of the F.I.R has been produced as Annexure I. Statement recorded from the second respondent forming part of Annexure I F.I.R would disclose that soon after the marriage, after a period of 1 ½ years, she was continuously residing at her family house. At the time of giving that statement she has two children, the eldest then aged six years and the youngest one year. The allegation raised in her statement would indicate that her case was that at the time of marriage, towards dowry a sum of Rs.5,00,000/- was given to her husband apart she being provided with gold ornaments for 101 sovereigns. After her marriage, the aforesaid sum and also her valuable gold ornaments had been misused by her motherin-law and sister-in-law, is her case. She would further allege that after misusing her valuable assets provided at the time of marriage, which was so done without her consent, there was a further demand for a sum of Rs.3,00,000/- and that demand was made by her mother-in-law and sister-in-law. She was harassed, intimidated and assaulted, both physically and mentally, at her Crl.MC No.1674/2012 3 house by both of them, to compel her to accede to the aforesaid demand, is her further case. She would also state that her husband failed to provide any maintenance to her and children for the last more than one year and there was also default on his part in taking her back to his house. On the aforesaid allegations raised by her, the crime was registered and that led to the indictment for offences under Annexure I filed by the police stated supra against her husband, mother-in-law and sister-in-law. Going through final report also, I find, substantially the same allegations imputed in the statement given by the second respondent are reiterated to level the indictment against the accused persons. In appreciating the challenge canvassed by the petitioner against the report filed and also further proceedings taken thereof against her by the Magistrate, it has to be examined whether a prima facie case has been made out warranting trial of the petitioner for the indictment leveled. Statement given by the second respondent/de facto complainant, though imputes of a demand for Rs.3,00,000/from her by the mother-in-law and the sister-in-law, it is not at all disclosed that such demand was one towards dowry. Even accepting the allegation raised as such that there was misuse of Crl.MC No.1674/2012 4 her valuable assets by her mother-in-law and sister-in-law, which, according to the complainant, were given to her at the time of marriage, that by itself would not constitute any offence under Section 498(A) of the Indian Penal Code. Similarly, any demand for sum without any nexus to dowry cannot also give rise to any imputation for prosecuting the husband or his relatives for the offence under Section 498(A) of Indian Penal Code. Even on the facts and circumstances involved also the very case of the complainant, as seen from her statement, is that one and half years after her marriage she shifted residence to her family house. Her version in the statement is that in the bed room of her family house she was intimidated and assaulted by the mother-in-law and sister-in-law. No date or other particulars of such incident are given. Leave alone that her version itself would show that even at the time of giving such statement she had no injury on her person. Admittedly, she continued residence in her family house for several years. Further allegation is raised that there was default on the part of her husband to take her back to his house and negligence in providing assistance to her and children, at least one year prior to giving of the statement. It is further shown that the petitioner Crl.MC No.1674/2012 5 sister-in-law of the de facto complainant/second respondent is an Ayurveda medical practitioner and she is living with her husband. She is having a separate residence from that of her family house. Her address given in the final report would also prima facie supports that she has separate residence and is not residing with her brother and mother. In that back drop, it is evidently clear the allegation of harassment raised against her is illmotivated and, prima facie intended only to harass and vex her. 4. Needless to point out that a criminal trial may lead to immense suffering for the persons proceeded against. Though the penal offence covered by Section 498(A) of Indian Penal Code enables the wife to proceed not only against the husband, but his close relatives as well, a pragmatic approach having regard to the circumstances should be taken by the court and there should be care and scrutiny whether the imputations made against the close relatives of the husband warrant proceedings against them. The Apex Court in **“Preeti Gupta and Another v State of Jharkhand and Another” ((2010) 7 SCC 6670)** has emphasised the need to scrutinize the allegations of the complaint with care and circumspection where Crl.MC No.1674/2012 6 imputations are made against the close relatives of the husband alleging harassment by them, especially, where those relatives are shown to be residing at different places. 5. Learned counsel for the second respondent/de facto complainant pointing out that the trial has already commenced and two among the witnesses are already examined before the court urged that at this stage no further action from this court is called for on the petition filed by one among the accused. I cannot agree. Facts and circumstances prima facie reveal that the allegations imputed against the petitioner, sister of the husband, are unsustainable and do not constitute any offence under Section 498(A) of Indian Penal Code. When that be so, to compel her to face the trial is nothing but an abuse of process of the court. In that view of the matter, criminal proceedings against the petitioner/third accused in C.C No.815 of 2007 of Judicial First Class Magistrate Court, Sasthamcotta are quashed under Section 482 of the Code. vdv **S.S.SATHEESACHANDRAN, JUDGE**