Ibrahimkutty and Beema v. Salmath and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** ## **Crl.MC.No. 307 of 2018** **AGAINST THE ORDER/JUDGMENT IN CC 3428/2012 of J.M.F.C.-II, ERNAKULAM** **CRIME NO. 683/2012 OF ERNAKULAM CENTRAL POLICE STATION** ## **PETITIONERS / ACCUSED:** - **1 IBRAHIMKUTTY, AGED 75 YEARS, S/O.MOOSA, MALAYIL HOUSE, KRISHNASWAMI ROAD, KOCHI-682035.** - **2 BEEMA, AGED 65 YEARS, W/O. IBRAHIMKUTTY, MALAYIL HOUSE, KRISHNASWAMI ROAD, KOCHI-682035.** **BY ADVS.SRI.D.G.VIPIN SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY** ## **RESPONDENTS / DE FACTO COMPLAINANT & COMPLAINANT:** - **1 SALMATH, AGED 25 YEARS, W/O. MUHAMMED IQBAL, MALAYIL HOUSE, KRISHNASWAMI ROAD, KOCHI-682035.** - **2 STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, ERNAKULAM CENTRAL POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN-682031.** **R2 BY PP. SRI. T.R. RENJITH., R1 PARTY IN PERSON** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 307 of 2018** **2** ## **ORDER** The petitioners herein are husband and wife respectively. The 1[St] petitioner is aged about 75 years and the 2[nd] petitioner is also a senior citizen. They have been arrayed as the accused in C.C. No. 3428 of 2012 on the file of Judicial Magistrate of the First Class-II, Ernakulam. The de facto complainant is the daughter-in-law of the petitioners herein. In the aforesaid case, the petitioners are proceeded against for having committed offences punishable under Sections 323, 294(b) and 341 r/w Section 34 of the IPC. 2. The petitioners have two children. Their daughter is a widow and their son, who is the husband of the 1[st] respondent, used to live with them along with his family. Their relationship was very strained. The son was under the impression that the petitioners were attempting to assign the residential building and the property in favour of his sister. This has been the reason for the intense bickering. On 15.3.2012, at about 6.30 p.m, the 1[st] respondent approached the Ernakulam Central Police Station and gave a statement alleging that on the previous day at about 10.30 p.m., **Crl.MC.No. 307 of 2018** **3** she was assaulted by the petitioners. According to her, they found fault with the 1[st] respondent for switching on the light and she was pushed down by the 1[st] petitioner and she was pulled on her hair by the 2[nd] petitioner. She specifically states in her complaint that the residential building stands in the name of the 1[st] petitioner and that the petitioners are planning to assign the same to their daughter after evicting the 1[st] respondent and her family. Based on the above information, the subject crime was registered and after completing the investigation, final report was laid. The final report is under challenge in this petition filed under Section 482 of the Cr.P.C. 3. The learned counsel appearing for the petitioners submitted that the registration of the crime against the aged and ailing petitioners at the instance of the 1[st] respondent is clearly a _mala fide_ act in order to spite them. According to the learned counsel, the residential home in which the petitioners have been staying belongs absolutely to the 1[st] petitioner. They are continuously being abused and physically assaulted by their son and the 1[st] respondent and their life has been turned into a hell. The learned counsel would further submit that Crime No.680 of 2012 was registered **Crl.MC.No. 307 of 2018** **4** earlier at the instance of the 1[st] petitioner herein at the Ernakulam Central Police Station under Sections 341, 323, 324 r/w Section 34 of the IPC arraying the son of the petitioners and the 1[st] respondent. According to the petitioners, on 15.03.2012, while the petitioners were sleeping, the 1[st] respondent switched on the television at about 12.30 a.m., and when she was requested to lower the volume, the petitioners were brutally assaulted. The brother of the 1[st] petitioner had taken him to the hospital and on 15.03.2012, at about 5 p.m., the aforesaid crime was registered. The learned counsel would further submit that the petitioners had instituted a suit against their son and the 1[st] respondent as O.S No. 288 of 2012 before the Additional Munisiff's Court, Ernakulam and by AnnexureA7 judgment dated 31.03.2014, the said suit was decreed and the 1[st] respondent and her husband were ordered by way of mandatory injunction to shift their residence from the plaint schedule property and they were also restrained by a permanent prohibitory injunction from interfering or disturbing the peaceful life of the petitioners. Though the above judgment was challenged in appeal, the learned Additional Subordinate Judge by Annexure-A8 judgment dismissed the same. It is urged by the learned counsel that it is to force the **Crl.MC.No. 307 of 2018** **5** petitioners to assign the property to their son on the threat of criminal prosecution that this criminal proceedings have been instituted. Finally, it is submitted that when it is evident from the records that the registration of the crime is for the purpose of harassment, this Court will be well justified in quashing the proceedings by exercising powers under Section 482 of the code. 4. The 1[st] respondent appeared in person and she has advanced arguments. She vehemently submitted that it is undisputed that an incident had occurred in the confines of the home on 15.3.2012 and there is no reason to doubt her version at this stage. She was taken to the hospital by her husband and some injuries have been noted by the doctor concerned. According to the 1[st] respondent, it would not be proper for this Court to analyse the case of the prosecution in the light of probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. She would refer to the decision of the Apex Court in **Zandu Pharmaceutical Works Ltd.** v. **Sharaful Haque** [(2005) 1 SCC 122] and it was contended that it would be erroneous for this **Crl.MC.No. 307 of 2018** **6** Court to assess the materials before it and conclude that the case cannot be proceeded with. 5. I have considered the submissions advanced by both sides and have gone through Annexure-A4 FIR registered at the instance of the 1[st] petitioner herein and the final report which has been laid at the instance of the 1[st] respondent. 6. From the materials placed before this Court, it is evident that the incident, which occurred on 15.03.2012, took place inside the house of the petitioners herein. The 1[st] petitioner is the absolute owner and the 1[st] respondent and her family were residing there with the permission of the petitioners. The first crime has been registered at the instance of the 1[st] petitioner and the allegations would show that when the petitioners demanded the 1[st] respondent to lower the volume of the television at 12.30 a.m., they were attacked. It is much later that Annexure-A2 crime was registered at the instance of the 1[st] respondent. Annexure-A7 is the judgment passed by the learned 1[st] Additional Munsiff in O.S. No.288 of 2012 and Annexure-A8 is the judgment passed by the **Crl.MC.No. 307 of 2018** **7** Subordinate Judge, Ernakulam. By Annexure-A7, the 1[st] respondent and her family have been directed by way of mandatory injunction to shift their residence from the house and they were also restrained by an injunction from interfering with the peaceful life of the petitioners herein. After going through the entire records, it is evident that registration of Annexure-A1 FIR and the filing of Annexure-A3 final report in Crime No.683 of 2012 of the Central Police Station, Ernakulam are manifestly attended with _mala fides_ with the motive of wrecking vengeance against the petitioners. 7. The inherent power has to be exercised sparingly and cautiously only when such exercise is justified by the tests laid out in the section namely, to give effect to the order under the Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. The power can be exercised _ex debito justitiae_ to do real and substantial justice for the administration of which court exists. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the **Crl.MC.No. 307 of 2018** **8** proceedings ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has not to be administered according to laws made by the legislature. (See **State of Karnataka v. L.Muniswamy and others** [1997 (2) SCC 699]). ## 8. In **Vineet Kumar and Ors.** v. **State of Uttar Pradesh** **and Anr.** [(2017) 13 SCC 369], the Apex Court has observed as follows: "Inherent power given to the High Court under Section 482 Cr.P.C is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to **Crl.MC.No. 307 of 2018** **9** thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 Cr.P.C and quashed the criminal proceedings." 9. Having gone through the sequence of events and the nature of allegations, it is clear that criminal proceedings have been initiated against the petitioners to spite them and to harass them for initiating proceedings against the de facto complainant and her husband. The prosecution case is _mala fide_ , untenable and is for the purpose of harassing the petitioners. I have no doubt that this is an eminently fit case where this Court will be justified in quashing the criminal proceedings against the petitioners to prevent abuse of process of the court. **Crl.MC.No. 307 of 2018** **10** In the result, this petition will stand allowed. Annexure-A3 final report and all proceddings pursuant thereto against the petitioners now pending as C.C.No.3428 of 2012 on the file of the Judicial Magistrate of First Class-II, Ernakulam are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A. TO JUDGE** avs/19.12.2018 **Crl.MC.No. 307 of 2018** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.683/2012 OF ERNAKULAM CENTRAL POLICE STATION DATED 15-03-2012. ANNEXURE A2 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.683/2012 OF ERNAKULAM CENTRAL POLICE STATION DATED 15-03-2012. ANNEXURE A3 TRUE COPY OF THE FINAL REPORT IN C.C.NO.3428/2012 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ERNAKULAM DATED 17-03-2012. ANNEXURE A4 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.680/2012 OF ERNAKULAM CENTRAL POLICE STATION DATED 15-03-2012. ANNEXURE A5 TRUE COPY OF THE FIRST INFORMATION STATEMENT IN CRIME NO.680/2012 OF ERNAKULAM CENTRAL POLICE STATION DATED 15-03-2012. ANNEXURE A6 TRUE COPY OF THE ORDER IN I.A.NO.2212/2012 IN O.S.NO.288/2012 PASSED BY THE 1ST ADDITIONAL MUNSIFF COURT, ERNAKULAM DATED 24-03-2012. ANNEXURE A7 THE TRUE COPY OF THE JUDGMENT IN O.S.NO.288/2012 PASSED BY THE 1ST ADDITIONAL MUNSIFF COURT, ERNAKULAM DATED 31-03-2014. ANNEXURE A8 TRUE COPY OF THE JUDGMENT IN A.S.NO.39/2014 PASSED BY THE 2ND ADDITIONAL SUB COURT, ERNAKULAM DATED 29-07-2017. RESPONDENT'S/S EXHIBITS: NIL**