Imthiyaz Ahammed v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 CRL.MC NO. 2922 OF 2022** **AGAINST THE ORDER/JUDGMENT IN SC 840/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM / III ADDITIONAL MACT, ERNAKULAM** ## **PETITIONER/ACCUSED:** IMTHIYAZ AHAMMED AGED 49 YEARS S/O. MUHAMMED SHAFI FLAT NO 6E, LINK HORIZON, MARINE DRIVE, COCHIN, PIN - 682305 BY ADVS. SAIBY JOSE KIDANGOOR ANJALI NAIR ANOOP SEBASTIAN PRAMITHA AUGUSTINE IRINE MATHEW ADITHYA KIRAN V.E ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM, PIN - 682015 3 SREENIVASAN S/O. LATE. RANGASWAMI, AGED 44 YEARS, 60/25, THADAVAKUTTIDA STREET SOZHAR NAGAR, PENNADAM POST, TITTAGUDI TALUK, PENNADAM, CUDDALORE, TAMIL NADU, PIN - 606105 BY ADV PUBLIC PROSECUTOR SRI.SANGEETHA RAJ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. M. C. No. 2922 of 2022 **==> picture [22 x 8] intentionally omitted <==** ## **O R D E R** This Crl.M.C. has been filed to quash all further proceedings in Annexure-E Final Report under Section 482 of the Cr.P.C. 2. The petitioner is the accused in Crime No. 1638/2020 of Ernakulam Central police station. The 3[rd] respondent is the de facto complainant. The offences alleged against the petitioner are punishable under Sections 342, 370, 201 and 506 of the IPC. 3. The petitioner along with his family was residing at Flat No. 6E, Link Horizon Apartment at Marine Drive. Admittedly, the deceased, the wife of the 3[rd] respondent, was working as a domestic servant in the petitioner’s house at the time of the alleged incident. The 3[rd] respondent and his deceased wife are natives of Tamil Nadu. The wife of the 3[rd] respondent died falling from the flat on 05.12.2020. Crl. M. C. No. 2922 of 2022 **==> picture [22 x 9] intentionally omitted <==** 4. According to the prosecution, the petitioner gave an amount of Rs.10,000/- as salary advance to the deceased. When the deceased told the petitioner that she wanted to go back to her home, he demanded back the advance amount. It is alleged that in order to restrain the deceased from leaving the flat without repaying the salary advance amount received, the petitioner wrongfully confined her in the kitchen by closing the room from the outside. At 9.40 p.m., the deceased attempted to escape from the flat by tying her saree to the balcony rails and during the attempt, she fell on the portico of the flat and sustained grievous injuries and on 12.12.2020, she succumbed to the injuries. The prosecution further alleged that the petitioner gave false information to the police that the deceased fell down while she attempted to escape from the flat after stealing cash from his house and produced the purse of the deceased before the police after putting some cash in it. It is also alleged that the petitioner Crl. M. C. No. 2922 of 2022 ..4.. criminally intimidated the victim. 5. I have heard Sri. Saiby Jose Kidangoor, the learned counsel for the petitioner and Sri. Sangeetha Raj, the learned Senior Public Prosecutor. Even though notice has been served to the 3rd respondent, there is no appearance. 6. The learned counsel for the petitioner Sri. Saiby Jose Kidangoor appearing for the petitioner argued that even if the entire allegations in the FIS together with the materials collected during the investigation are believed in toto, no offence under Sections 342, 370, 201 and 506 of the IPC are made out. 7. Section 370 of the IPC deals with trafficking of persons. Admittedly, the deceased was employed as a maid by the petitioner at his home. A plain reading of Section 370 of the IPC makes it clear that whoever, for the purpose of exploitation, recruits, transports, harbours, transfers or receives, any girl or woman for the purpose of exploitation by using threats, or any ..5.. Crl. M. C. No. 2922 of 2022 other form of coercion, or by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement, such person is guilty of the offence of trafficking of person. The expression “exploitation” includes any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. A reading of the FIS would show that there are no allegations that the deceased was procured for the purpose of exploitation or that the petitioner has resorted to threats, force, or any other form of coercion or inducement either on the deceased or on the 3[rd] respondent or on any other person. There is absolutely no case for the prosecution in the final report that the petitioner recruited, transported, harboured, transferred, or received the deceased either by using threat or using force or coercion or by abduction or by practising fraud, or deception, or by abuse of power or by inducement. There are absolutely no Crl. M. C. No. 2922 of 2022 **==> picture [22 x 9] intentionally omitted <==** allegations that there was any sort of exploitation. In the absence of any such allegations, the charge under Section 370 of IPC does not get attracted. A reading of the entire final report would show that the deceased was employed by the petitioner as early as in the year 2017. After a short while, she went back to her native place and came back to the petitioner’s home as a domestic servant on her own volition. In these circumstances, I am of the view that the basic ingredients of Section 370 of the IPC are not attracted. 8. Section 342 of IPC deals with punishment for wrongful confinement. The term “wrongful confinement” is defined under Section 340 of IPC as whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits. The term “wrongful restraint” is defined under Section 339 of IPC as whoever voluntarily obstructs any person so as to prevent that Crl. M. C. No. 2922 of 2022 **==> picture [22 x 8] intentionally omitted <==** person from proceeding in any direction in which that person has a right to proceed. Thus, in order to attract 'wrongful confinement', the acts complained of should come within the definitions of “wrongful restraint” and “wrongful confinement” defined under Sections 339 and 340 of the IPC respectively. The case of the prosecution is that the petitioner locked the deceased in the kitchen. The materials on record would show that the police came to the spot and broke open the door of the kitchen. If that be so, it was the deceased who locked the kitchen from inside. That apart, the only piece of evidence in the final report to attract the offence of wrongful confinement is the statement of the 3[rd] respondent. He stated that, on the previous day of the incident, he telephoned the deceased and she stated that she was locked in the kitchen by the petitioner. During the investigation, the investigating agency has also collected the call detail reports of the deceased and the 3[rd] respondent to show that there was a Crl. M. C. No. 2922 of 2022 **==> picture [22 x 9] intentionally omitted <==** call from the telephone of the 3[rd] respondent to the phone used by the deceased at 9.40 p.m. These two pieces of evidence were relied on by the prosecution to contend that the offence under Section 342 of the IPC is attracted. No doubt, the said piece of evidence being hearsay is hit by Section 60 of the Evidence Act. The question is whether the said statement would fall within the ambit of Section 32(1) of the Evidence Act. Section 32(1) reads as follows:- _“32._ _**Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant** :- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—_ _(1)_ _**When it relates to cause of death** . —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that_ Crl. M. C. No. 2922 of 2022 ..9.. ## _person's death comes into question._ _Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”_ 9. The statement of the deceased person so as to become admissible under Section 32 (1) has to be in a case where the cause of that person’s death comes into question. In a prosecution under Sections 370, 201, 342 or 506 of the IPC, the cause of the death of the person concerned does not come into question and hence the circumstances which do not form part of the transaction resulted in the death of the deceased would not fall within the scope of S.32(1). The circumstances must have some proximate relation to the actual occurrence. By no stretch of imagination can the statement of the deceased allegedly spoken to her husband be connected with any of the transactions which resulted in her death. Apart from the statement of the 3[rd] respondent that he had telephoned his wife on the previous night Crl. M. C. No. 2922 of 2022 ..10.. of the incident and told him that she was confined in the kitchen room by the petitioner, there is absolutely no other material to substantiate the said allegations. For these reasons, I hold that Section 342 also is not attracted. 10. What remains is Sections 506 and 201 of the IPC. There is absolutely no allegation in the prosecution records to attract Section 506 of the IPC. Section 201 gets attracted when the offender, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. The learned counsel for the petitioner argued that Section 201 is not a stand alone provision and the moment it is found that the main offence is not attracted, Section 201 has no application. It is essential to prove that the Crl. M. C. No. 2922 of 2022 **==> picture [28 x 8] intentionally omitted <==** substantial offence has been committed in order to substantiate the charge u/s 201, it was submitted. I cannot subscribe to the said argument. 11. The offence u/s 201 is of independent nature, though it cannot be separated from the substance of the main offence. It is well settled that a conviction u/s 201 is permissible notwithstanding the acquittal of the accused from the main offence [ _see_ Constitution Bench decision of the Supreme Court in _**Kalawati and Others v. State of Himachal Pradesh**_ (1953) SCR 546 and two other decisions of the Supreme Court in _**State of Karnataka v. Madesha and Others**_ (2007) 7 SCC 35 & _**Sukhram v. State of Maharashtra**_ (AIR 2007 SC 3050)]. Thus, a charge u/s 201 of Cr.P.C would lie even if there are no ingredients to attract the main offence in the final report. 12. The allegation as regards to S.301 of Cr.P.C is that the petitioner gave false information to the police that the Crl. M. C. No. 2922 of 2022 ..12.. deceased fell down while she attempted to escape from the flat after stealing cash from his house and produced the purse of the deceased before the police after putting some cash in it. But, apart from the bald allegation, there are nothing on record to substantiate the same. Hence, the ingredients of S.201 of IPC also is not attracted. 13. For the reasons stated above, I am of the view that the ingredients of none of the offences alleged against the petitioner are attracted. Hence, no purpose will be served in proceeding further against the petitioner. Accordingly, all further proceedings in S.C No. 840 of 2021 on the file of Additional Sessions Court, Ernakulam hereby stands quashed. The Crl.M.C. is allowed as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** RMV/22/06/2022 Crl. M. C. No. 2922 of 2022 ..13.. ## **APPENDIX OF CRL.MC 2922/2022** PETITIONER ANNEXURES Annexure A TRUE COPY OF THE FIR NO. 1638/2020 OF ERNAKULAM CENTRAL POLICE STATION Annexure B TRUE COPY OF THE COMPLAINT DATED 10.12.2020 BEFORE THE COMMISSIONER OF POLICE, KOCHI CITY Annexure C TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 10.12.2020 OF THE CITY POLICE OFFICE, KOCHI Annexure D TRUE COPY OF THE ORDER IN BAIL APPLICATION NO.2413 OF 2020 Annexure E CERTIFIED COPY OF THE FINAL REPORT/CHARGE SHEET NO. 252/2021 DATED 17.02.2021 PURSUANT TO FIR NO. 1638/2020 OF ERNAKULAM CENTRAL POLICE STATION, NOW PENDING AS S.C NO. 840/21 BEFORE THE HONOURABLE ADDITIONAL DISTRICT AND SESSIONS COURT, AT ERNAKULAM