Indira and Sindu v. State of Kerala (Crl.M.C. No.1350 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942** ## **Crl.MC.No.1350 OF 2019(G)** **AGAINST CC NO.1497/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM** **CRIME NO.528/2017 OF PERAMANGALAM POLICE STATION, THRISSUR** ## **PETITIONERS/ACCUSED NO.2& 3:** - **1 INDIRA, AGED 57 YEARS W/O.VINOD, PACHUNGAL HOUSE, PONNORE, PONNORE P.O., THRISSUR DSITRICT-680 552** - **2 SINDU AGED 31 YEARS D/O.VINOD, PACHUNGAL HOUSE, PONNORE, PONNORE P.O., THRISSUR DSITRICT-680 552** **BY ADV. SRI.MAHESH V.MENON** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM-682 031** **2 SMITHA AGED 35 YEARS D/O.VASUDEVAN, THAYYYIL HOUSE, EDAKAZHIYOOR P.O., CHAVAKKAD, THRISSUR DISTRICT-680 516** **R2 BY ADV. SRI.P.RAMACHANDRAN** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.1350 of 2019 2 ## **ALEXANDER THOMAS, J. =========================== Crl.M.C.No.1350 of 2019** **===========================** Dated this the 11[th] day of September, 2020 ## **ORDER** The petitioners herein have been arrayed as accused Nos.2 & 3 among the three accused in the impugned Annexure-A1 Crime No.528/2017 of Peramangalam Police Station, Thrissur City, which has been registered on 16.05.2017 on the basis of the First Information Statement of the 2[nd] respondent-lady de facto complainant. The offences alleged in Annexure-A1 FIR are those punishable under Secs.498A, 406, 341 & 323 of the Indian Penal Code (IPC). The police after investigation has filed the impugned Annexure-A2 final report/charge sheet on 16.07.2018 against all the abovesaid three accused persons concerned for the offences punishable under Secs.498A, 406, 341 & 323 of the IPC. 2. The gist of the allegations in the abovesaid criminal proceedings are to the effect that the 2[nd] respondent is the wife of accused No.1 and that after her marriage, she has been living in the matrimonial home along with her husband (A1) as well as the 1[st] petitioner herein (A2), who is the Crl.M.C.No.1350 of 2019 3 mother of A1 and the 2[nd] petitioner herein (A3), who is the sister of A1. The allegations are to the effect that after the marriage, the abovesaid accused persons have treated her with cruelty and harassment and that they ill-treated her by saying that she lacks beauty and that they have demanded her gold ornaments and have mentally and physically harassed her and caused her hurt and that 75 sovereigns gold ornaments out of the total 125 sovereigns of gold ornaments received by her at the time of her marriage has been taken away by the accused persons and have used it for their own purposes and hence, they have committed the abovesaid offences. 3. The learned counsel for the petitioners has raised very contentions that after the effect that the cognizance of the abovesaid offences are barred by limitation as envisaged in Sec.468 of the Cr.P.C and that even otherwise there is long delay in filing of the FIS in this case. Further that, there are no serious allegations disclosed against the two petitioners herein, so as to warrant initiation of proceedings in the abovesaid offences in question. 4. The learned Public Prosecutor would point out that the offences alleged in this case are those punishable under Secs.498A, 406, 341 & 323 of the IPC and that the maximum punishment permissible for the offences under Sec.498A of the IPC is three years and going by the provisions Crl.M.C.No.1350 of 2019 4 contained in Sec.468 of the Cr.P.C, the limitation period is three years and that the perusal of the impugned criminal proceedings would show that the allegations regarding Sec.498A has occurred as late as upto 2016 and even thereafter and therefore, the filing of the final report on 16.07.2018 cannot be said to be illegal or that the cognizance thereof is barred by limitation, etc. Further the learned Public Prosecutor and the learned Advocate appearing for the 2[nd] respondent would submit that ingredients of the abovesaid offences are disclosed not only as against the 1[st] accused but as against both the present petitioners (accused Nos.2 & 3). 5. After hearing both sides, this Court is not in a position to countenance the abovesaid contentions of the petitioners regarding bar of limitation as envisaged under Sec.468 of the Cr.P.C and the abovesaid submissions made by the learned Public Prosecutor are only to be accepted. But after hearing both sides _in extenso_ and on perusing through the materials disclosed in Annexure-A1 FIR/FIS and Annexure-A2 final report/charge sheet, it can be seen that no serious allegations are disclosed against 2[nd] petitioner (3[rd] accused), who is the sister of the 1[st] accused. Of course, there is an allegation in page No.1 of Annexure-A1 FIS that the 2[nd] respondent has been subjected to mental harassment by all the three accused persons. The said allegations raised as against the 2[nd] petitioner are rather vague and generalized and it cannot be an allegation which Crl.M.C.No.1350 of 2019 5 would justify disclosure of offence as per Sec.498A of the IPC as against the 2[nd] petitioner. 6. Sec.498A of the Indian Penal Code reads as follows : ## **“498A. Husband or relative of husband of a woman subjecting her to cruelty** Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.” 7. Cruelty has been defined in clause (a) under explanation to Sec.498A, so as to mean any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman or clause (b) thereof would take in harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property of valuable security or is on account of failure by her or any person related to her to meet such demand. 8. It has been held by the Apex Court and various High Courts, including this Court in a series of cases as in _**Sushil Kumar Sharma v. Union of India & Ors.**_ [JT 2005 (6) SC 266], _**Preeti Gupta and another v. State of Jharkhand and another**_ [(2010) 7 SCC 667] that the object for which Section 498A of the IPC was introduced is to deal with the increase in number of dowry deaths is reflected in the statement of Crl.M.C.No.1350 of 2019 6 objects and reasons while enacting the Criminal Law (Second Amendment) Act No.46 of 1983 and as clearly stated therein the increase in number of dowry deaths is a matter of serious concern and the extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961, etc. and that the object of the provision is prevention of the dowry menace and that there has been many instances which have come to light, where the complaints are not _bona fide_ and and have been filed with oblique motives. In such cases, the acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to the trial and sometimes adverse media coverage also adds to the misery, etc. and that the courts will have to take care of the situation within the existing frame work. So that the objective is to strike at the roots of dowry menace. But the misuse of the provision of will amount to a new legal terrorism has to be prevented and that the said provision is intended to be used as a shield and not as an assassin's weapon, etc. 9. It will also be pertinent to refer paragraph Nos.30 & 32 of the judgment of the Apex Court in _**Preeti Gupta and another v. State of Jharkhand and another**_ [(2010) 7 SCC 667], which read as follows : “30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. Crl.M.C.No.1350 of 2019 7 **==> picture [91 x 22] intentionally omitted <==** 32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive . At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.” 10. Going by the materials in the impugned criminal proceedings, more particularly, those at Annexure-A1 FIR and FIS and Annexure-A2 final report/charge sheet, this Court is constrained to take the view that no serious allegations are disclosed as against the 2[nd] petitioner (accused No.3), who is the sister of accused No.1 except certain vague and generalized allegations, which appears to be made only for the sake of ritualistically making allegations. 11. Apart from the submissions made on behalf of the petitioners, Sri.Mahesh V.Menon, learned counsel appearing for the petitioners would also submit that on account of the pendency of the abovesaid criminal proceedings, even the marriage proposal relating to the 2[nd] petitioner (A3), who is the 31 year old unmarried sister of A1 had to be cancelled and she is facing ignominy before the public in having to face such a criminal proceedings on account of the false allegations foisted against her in this case. Crl.M.C.No.1350 of 2019 8 12. Accordingly, this Court is of the considered view that the impugned criminal proceedings to the limited extent it has arrayed the 2[nd] petitioner as accused No.3 therein is liable for interdiction at the hands of this Court in exercise of powers under Sec.482 of the Cr.P.C. Hence, it is ordered that the impugned Annexure-A2 final report/charge sheet filed in the impugned Annexure-A1 Crime No.528/2017 of Peramangalam Police Station, Thrissur City, which has led to the pendency of calendar case C.C.No.1497/2018 on the file of the Judicial First Class Magistrate's Court, Kunnamkulam, to the limited extent it is directed against the 2[nd] petitioner (A3) and all consequential proceedings arising therefrom as against the 2[nd] petitioner (A3) will stand quashed. It is made clear that the impugned criminal proceedings to the extent it is directed as against the 1[st] accused and the 1[st] petitioner (A2), may proceed strictly in accordance with law. However, it is made clear that taking note of the contentions of the 1[st] petitioner, it is ordered that in case, charges have not so far been framed by the learned Magistrate, then the 1[st] petitioner will be at liberty to file appropriate application seeking discharge in the instant case and if such application is filed within two weeks from the date of receipt of a certified copy of this order, the same shall be considered on merits after affording reasonable opportunity of being heard to the 1[st] petitioner as well as the prosecution and the 2[nd] respondent-de facto complainant, without much Crl.M.C.No.1350 of 2019 9 delay, preferably within a period of six weeks from the date of filing of such application of discharge along with a certified copy of this order. However, it is made clear that the said direction for consideration of discharge application will come into play only if charges have not so far been framed by the learned Magistrate Court in the instant calendar case C.C.No.1497/2018. It is also made clear that all contentions of the 1[st] accused and the 1[st] petitioner (A2) are left open to be raised and decided in the manner known to law. With these observations and directions, the above Crl.Miscellaneous case will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd Crl.M.C.No.1350 of 2019 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 CERTIFIED COPY OF FIR IN CRIME NO 528/2017 OF PERAMANGALAM POLICE STATION ANNEXURE-A2 CERTIFIED COPY OF FINAL REPORT IN CC 1497/2018 OF JFCM KUNNAMKULAM**