Hridya Ramesh and Rameshan V. v. State of Kerala and Leela Balan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE M.R.ANITHA`** ``` THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943 ``` ## **`CRL.MC NO. 1533 OF 2020`** ``` AGAINST THE ORDER/JUDGMENT IN CC 766/2017 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,KUTHUPARAMBA, KANNUR`** ## **`PETITIONERS/ACCUSED 1 & 2:`** - **`1 HRIDYA RAMESH AGED 33 YEARS D/O.RAMESH, RESIDING AT SREE RAM, NEDUNKOTTUKAVU ROAD, ARANGETTUPARAMB, ERANHOLI, THALASSERY, KANNUR DISTRICT.`** - **`2 RAMESHAN V., AGED 52 YEARS S/O.NANU (LATE), RESIDING AT SREE RAM, NEDUNKOTTUKAVU ROAD, ARANGETTUPARAMB, ERANHOLI, THALASSERY, KANNUR DISTRICT. BY ADV SHAMEENA SALAHUDHEEN`** ## **`RESPONDENTS/STATE & COMPLAINANT:`** - **`1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.`** - **`2 LEELA BALAN, AGED 70 YEARS W/O.BALAN, VIVEK BHAVAN, POOVATHINKEEZHIL, CHITTARIPARAMBA, KANNUR DISTRICT.`** - **`BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA`** ## **`BY ADV SANGEETHARAJ N.R, PUBLIC PROSECUTOR`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` ``` 11.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1533 OF 2020 ``` ``` 2 ``` ## **ORDER** This Crl.M.C. has been filed seeking to quash the entire further proceedings against the petitioners in C.C.No.766 of 2017 on the file of the Judicial First Class Magistrate Court, Kuthuparamba. 2. The petitioners are accused in C.C.No.766 of 2017, which has been registered on the basis of a private complaint filed by the second respondent, who is none other than the mother-inlaw of the first petitioner. The second petitioner is the father of the first petitioner. Based upon the private complaint after conducting 202 Cr.P.C. enquiry, the case was taken on file by the Magistrate under Sections 323, 324, 354 (1), 294(b), 506(i) read with Section 34 and 120 (b) of the Indian Penal Code. Copy of the complaint is produced as Annexure A1. 3. The allegation in the complaint is that petitioners herein attacked the complainant/second respondent on 26.06.2016 while the second petitioner was taken to her matrimonial home in view of a mediation talk in the divorce OP filed by the son of the second respondent. ``` CRL.MC NO. 1533 OF 2020 ``` ``` 3 ``` 4. It is also the contention of the the learned counsel for the petitioners that actually on 26.06.2016 while the second petitioner took the first petitioner to her matrimonial home, the petitioners were brutally attacked by the second respondent herein along with her son and relatives. In connection with that, crime No.562/2018 of Kannavam police station was registered under Sections 341, 323, 324, 354 read with Section 34 IPC against the second respondent herein, her son and two relatives. Annexure A2 is the final report in that crime. That case is now pending as C.C.No.336 of 2017 before the Judicial First Class Magistrate Court, Kuthuparamba. 5. After the receipt of the summons in C.C.No.336 of 2017 from the Magistrate court, as an after thought, Annexure A1 complaint was filed by the second respondent and there is delay of nearly eight months in filing the complaint. Divorce OP filed by the son of the second respondent was dismissed and Annexure A3 is the copy of the judgment in O.P.No.195 of 2015. So according to the petitioners, this case has been taken against them by the learned Magistrate without conducting proper enquiry and evaluating the facts and circumstances and hence they approached this Court for quashing further proceedings against ``` CRL.MC NO. 1533 OF 2020 ``` ``` 4 ``` them as per Annexure A1 complaint. 6. Notice was issued to the respondents. Adv.Dhanya E.U. appeared on behalf of the second respondent/defacto complainant. The first petitioner appeared through the learned Public Prosecutor. 7. Heard both sides. 8. The main contention of the learned counsel for the petitioners is that there is long delay of about 8 months in filing this complaint and no reason for the delay has been given either in the complaint or while giving statement during 202 Cr.P.C. enquiry. This complaint was filed on receipt of summons in the case registered at the instance of the petitioners against the defacto complainant, her son and relatives. 9. It is also her contention that this complaint was filed after the first petitioner got a post as ‘physical education teacher’ in a Government School. Now the main grievance of the petitioners is that because of this crime, the first petitioner’s service is not regularized and probation is not declared. It is also contended that the defacto complainant is also not prepared to give evidence and the case was being protracted from 2017 onwards and thereafter, ``` CRL.MC NO. 1533 OF 2020 ``` ``` 5 ``` in the year 2020, this Crl.M.C. has been filed by them. 10. The learned counsel for the respondents, on the other hand, would contend that the defacto complainant was an old lady of 71 years and actually she was admitted in the hospital and she was under the impression that the police might have been intimated from the hospital authorities and that is why delay has been caused in filing the complaint. It is also their contention that though complaint was filed, police has not registered any crime due to the influence of the petitioners herein. 11. Before going to the factual aspects, it is relevant to discuss the position of law in this regard. It is relevant to quote **State of Karnataka v. L.Muniswamy (AIR 1977 SC 1489)** wherein it has been held that, the High Court is entitled to quash the proceedings if 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 it. ## 12. In **Gorige Pentaiah v. State of A.P. ((2008) 12 SCC** **531)** it has been held by the Apex Court while dealing with Section 482 that if any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in ``` CRL.MC NO. 1533 OF 2020 ``` ``` 6 ``` preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 13. The Apex Court have given guidelines in the context of exercising powers under Section 482 Cr.P.C/Article 226 of the Constitution of India, paragraph 104 of **State of Haryana and** **Others v. Ch.Bhajan Lal and Others (AIR 1992 SC 604 = 1992 SCC (Cri) 426)** is relevant to quote which reads thus: In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised 1. Where the allegations made in the First Information Report or the complaint, even if they ``` CRL.MC NO. 1533 OF 2020 ``` ``` 7 ``` 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 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent ``` CRL.MC NO. 1533 OF 2020 ``` ``` 8 ``` person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party 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 14. On perusing Ext.P1 complaint filed by the defacto complainant, there is no specific reason stated for the delay caused in filing the complaint eventhough they have got a contention that they have filed a complaint and the police has not registered, nothing has been brought into substantiate that contention. ``` CRL.MC NO. 1533 OF 2020 ``` ``` 9 ``` 15. From the side of the petitioners, they have produced Annexure A6, which is a letter given by the second petitioner under the Right to Information Act enquiring as to whether any complaint has been filed by the defacto complainant and Annexure A6(a) is the reply issued to the petitioners under the above Act from the Kannavam police station in which, it has been specifically stated that as per the records in the police station, no complaint has been received or FIR has been registered. 16. The learned counsel for the petitioners would also take my attention to the judgment in the divorce OP filed by the son of the second respondent. Annexure A3 is the judgment of the Family Court in O.P.No.195 of 2021 which is filed by the son of the complainant/the second respondent and the husband of the first petitioner for divorce and by that judgment, OP was dismissed. The learned counsel for the defacto complainant would submit that an appeal has been filed against the judgment, which is pending as MAT Appeal No.860 of 2017 before this Court. 17. The learned counsel for the petitioners highlighted page number 13 of the said judgment, wherein there is discussion with regard to the incident that happened on 26.06.2016, wherein the learned Family Court has accepted the version of the first ``` CRL.MC NO. 1533 OF 2020 ``` ``` 10 ``` petitioner herein. However, the matter is now pending in appeal before this Court. So I do not want to make any further comments upon the same. 18. The learned counsel for the petitioners has also got a contention that this case itself has been falsely foisted after knowing about the registration of the crime against them and she actually went to the hospital only on 28.06.2016 though the incident had occurred on 26.06.2016. Apart from a nail scratch on the left side of the face and small abrasion, no other injuries are noted. So Annexure A5, prima facie, show that she has been admitted in the hospital only after two days of the incident that would probabilise the case of the petitioners that only after coming to know that the petitioners were hospitalized and injuries were sustained by them and crime also has been registered in connection with their complaint, the defacto complainant went to the hospital and got examined by a Doctor. So prima facie , the injuries are very superficial injuries and there is delay also in consulting the Doctor. 19. Admittedly, matrimonial issues are pending between the son of the defacto complainant and the first petitioner. On 26.06.2016, according to the petitioners, they went to the house of ``` CRL.MC NO. 1533 OF 2020 ``` ``` 11 ``` the defacto complainant as per a mediation settlement and it is thereafter that the entire incident happened. There is long delay of about 8 months for filing the complaint, which is not at all explained by the defacto complainant. So, the learned counsel for the petitioners has got a specific contention that without conducting any proper inquiry, the summons was issued to the petitioners in the above case. 20. So evaluating the facts circumstances, it appears that criminal proceedings has been initiated by the defacto complainant who is none other than the mother-in-law of the first petitioner with ulterior motive, after a long delay and even if the trial is allowed to be proceeded, a chance for conviction is very remote. The first petitioner is presently working as a physical education teacher and her entire future would also be affected by this criminal prosecution initiated against her by the mother-in-law in continuation to her son by filing a OP for divorce. So continuation of the proceedings against the petitioners would be a sheer abuse of process of court without any possibility of ending the matter in a conviction. For securing the ends of justice, I find it just and proper to quash the entire further proceedings against the petitioners in C.C.No.766 of 2017 pending before the Judicial First ``` CRL.MC NO. 1533 OF 2020 ``` ``` 12 ``` Class Magistrate Court, Koothuparamba. In the result, Crl.M.C. allowed and all further proceedings in C.C.No.766 of 2017 on the file of the Judicial First Class Magistrate Court, Kuthuparamba is hereby quashed. **Sd/-** **M.R.ANITHA JUDGE** nkr ``` CRL.MC NO. 1533 OF 2020 ``` ``` 13 ``` ## **`APPENDIX OF CRL.MC 1533/2020`** ## **`PETITIONER ANNEXURE`** ## **`ANNEXURE A1`** ``` CERTIFIED COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT KUTHUPARAMBA DATED 21.02.2017. ``` - **`ANNEXURE A2 A TRUE COPY OF THE FINAL REPORT SUBMITTED BEFORE THE JFCM, KUTHUPARAMBA IN CRIME NO.562/2016 OF KANNAVAM POLICE STATION.`** - **`ANNEXURE A3`** - **`A TRUE COPY OF JUDGMENT IN O.P.NO.195/2015 OF THE FAMILY COURT, THALASSERY.`** - **`ANNEXURE A4 A TRUE COPY OF THE DEPOSITION OF THE 2ND RESPONDENT HEREIN IN O.P.NO.195/2015 OF THE FAMILY COURT, THALASSERY.`** - **`ANNEXURE A5 A TRUE COPY OF THE ACCIDENT REGISTER CUM WOUND CERTIFICATE PRODUCED BY THE 2ND RESPONDENT IN C.C.NO.766/2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA.`** - **`ANNEXURE A6 & A6(A) A TRUE COPY OF THE APPLICATION MADE UNDER THE RTI ACT AND THE ANSWER RECEIVED FROM THE KANNAVAM POLICE STATION DATED 05.02.2020.`** - **`ANNEXURE A7 A TRUE COPY OF THE CMP NO.3961/2018 IN CC 766/2017 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA.`** ``` ANNEXURE A8A TRUE COPY OF THE ORDER DATED 03.08.2018 IN CMP NO.3961/2018 IN CC 766/2017 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA. ```