K. Raveendran v. Sini T, Thankamani, Sasidharan, Murali and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** # **THURSDAY, THE 19TH DAY OF DECEMBER 2019/28TH AGRAHAYANA, 1941** ## **Crl.Rev.Pet.No.1111 OF 2012** **AGAINST THE ORDER IN CMP 756/2012 DATED 22-02-2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY** ## **REVISION PETITIONER/COMPLAINANT:** **K.RAVEENDRAN, S/O.KUNJAN PILLAI, RAJESH BHAVANAM, ADINADU SOUTH, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENTS/ACCUSED & THE STATE:** - **1 SINI.T, D/O.THANKAMANI, SUDHI NILAYAM (KOCHUVEEDU) KARAZHMA MURI, VALLIKKUNNAM VILLAGE, ALAPPUZHA VALLIKKUNNAM P.O, 690 501.** - **2 THANKAMANI, W/O.SASIDHARAN, -DO-** - **3 SASIDHARAN, S/O.VELAYUDHAN, -DO-** - **4 MURALI, S/O.RAGHAVAN, VILAKKATTU THARAYIL, KOCHALUMMOODU MURI, KULASEKHARAPURAM VILLAGE, KULASEKHARAPURAM P.O, 690 544.** - **5 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.K.A.ANAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.1111 of 2012 2 ## **ORDER** This revision petition is directed against the order dated 22.2.2012 of the Court of Judicial First Class Magistrate, Karunagappally in C.M.P.No.756 of 2012 whereby the said complaint was rejected. The revision petitioner was the complainant and respondents 1 to 4 herein were the accused. The first respondent is the wife of the petitioner's son and respondents 2 and 3 are her parents. The 4[th] respondent is allegedly the paramour of the first respondent and the petitioner alleged illicit relationship between the first and 4[th] respondents. In the said C.M.P., against respondents 1 to 4, commission of offences punishable under Sections 201, 312, 497 and 120(B) read with Section 34 of the Indian Penal Code are alleged. The case of the petitioner is as follows:- The marriage of the petitioner's son Rajesh with the first respondent was solemnized on 25.10.2007 and a male child was born in their wedlock. The petitioner's son Rajesh is working abroad and he went abroad about 2½ years ago. The first respondent was having illicit relationship with the fourth respondent and he impregnated her. The pregnancy was confirmed during December, 2010. Respondents 1 and 2 with the intention to abort the pregnancy contacted one Dr.Shiny and requested her to abort the pregnancy and on coming to know that the Crl.R.P.No.1111 of 2012 3 Doctor rejected the said request the petitioner contacted respondents 2 and 3 and informed them about the seriousness of the matter. On 20.12.2010 the second respondent and her relatives came to the house of the petitioner and took the first respondent who was pregnant and the male child to their house. Thereupon, respondents 1 to 4 entered into a criminal conspiracy and aborted the pregnancy of the first respondent and with the intention to conceal the aforesaid acts they destroyed the evidence. It is with the aforesaid allegations that the petitioner accused respondents 1 to 4 of commission of the aforesaid offences and filed the above mentioned C.M.P. The learned Magistrate rejected the complaint as per the impugned order dated 22.2.2012, holding that the complaint is not filed by an aggrieved person and it is not filed in accordance with the provisions of Section 198(2) of the Code of Criminal Procedure. 2. The contention of the petitioner is that the order dated 22.2.2012 rejecting C.M.P.No.756 of 2012 is illegal and was passed without any application of mind. The findings of the learned Magistrate that the complaint was not filed by an aggrieved person and was not filed in accordance with the provisions under Section 198(2) Cr.P.C. are absolutely unsustainable, it is contended. According to the petitioner, the court below ought to have found that the petitioner's son Rajesh, who was working abroad, had authorised the petitioner to file the Crl.R.P.No.1111 of 2012 4 complaint and in regard to the same a specific averment was taken in the complaint that the first respondent was residing in his house and was under his care. It is the further contention that the finding of the court below that the petitioner had not obtained leave of the court in filing the complaint is also bereft of any basis and if leave was necessary the court should have granted him an opportunity to obtain leave. Rejection of complaint without granting such a reasonable opportunity is illegal. In short, according to the petitioner, the learned Magistrate ought to have taken cognizance and conducted enquiry in respect of offences under Sections 201, 312 and 120(B), IPC as the said offences are not falling under Chapter XX of the Code of Criminal Procedure. At the stage of taking cognizance the court should have considered only whether a prima facie case was established to proceed against the accused and according to him, a mere reading of C.M.P.No.756 of 2012 itself would reveal a prima facie case to proceed against the accused. The further contention of the revision petitioner is that the finding of the court below that the complaint is a counter blast to O.P.(HMA)No.923 of 2011 filed by the first respondent before the Family Court, Alappuzha is absolutely baseless. 3. I have heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. Crl.R.P.No.1111 of 2012 5 4. At the very outset it is to be noted that the petitioner has not produced the copy of C.M.P.No.756 of 2012 along with the memorandum of criminal revision petition. The case as is obvious from the criminal revision petition as also from the impugned order is that the first respondent is the daughter-in-law of the petitioner and respondents 2 and 3 are her parents. The petitioner alleges that the fourth respondent is the paramour of the first respondent, that they had illicit relationship and that the 4[th] respondent impregnated the first respondent. Respondents 1 and 2 thereafter approached one Dr.Shiny to abort the pregnancy and she refused to do so. Thereafter, the petitioner contacted respondents 2 and 3 and informed about the seriousness of the matter. Subsequently, on 20.12.2010 the second respondent along with her relatives came to his house and took the first respondent and her child home. According to the petitioner, it is thereafter that they entered into criminal conspiracy and aborted the pregnancy of the first respondent and with an intention to conceal the illegal acts destroyed the evidence. The petitioner's son is working abroad and therefore the petitioner filed the aforesaid C.M.P. by himself. Going by the contentions in the revision petition and as is obvious from the impugned order the petitioner alleged commission of offences punishable under Sections 201, 312, 497 and 120(B) read with Section 34 of the Indian Crl.R.P.No.1111 of 2012 6 Penal Code against the respondents. Obviously, the court declined to direct for an investigation under Section 156(3) Cr.P.C. Evidently, the court found that it is not an inviolable position that on receipt of every complaint it is mandatory to order for its investigation under Section 156(3) Cr.P.C. and it is always open to the court to conduct an enquiry without forwarding the same for investigation. Evidently, the court found that to conduct an enquiry under Sections 200 and 202 Cr.P.C. the court has to take cognizance of the offence under Section 190 of Cr.P.C.. Furthermore, it is found that since the offence under Section 497 IPC is an offence against marriage, as per Section 198 of Cr.P.C., the court shall take cognizance of an offence under Chapter XX of the Indian Penal Code only upon a complaint by the person aggrieved by the offence. Admittedly, the complaint in question was not one filed by the husband of the first respondent/first accused. The complainant is the father of the husband of the first respondent/first accused. He had not filed the complaint in accordance with the provisions under Section 198 Cr.P.C. It is further found therein that the complainant viz., the petitioner got no case that he had the care of the woman on behalf of the husband of the woman and did not apply for the leave of the court for making complaint on behalf of his son. Therefore, it is found that the court could not take cognizance of the offences and to proceed under Sections 200 and 202 Crl.R.P.No.1111 of 2012 7 Cr.P.C. It is in the aforesaid circumstances that the complaint was rejected. The finding of the learned Magistrate that it is the discretion of the court to decide whether a complaint is to be forwarded for investigation under Section 156(3) Cr.P.C. cannot be said to be an incorrect statement of law. This Court in **Aloshia Joseph v. Rev. Dr.Joseph Kollamparambil and Another** reported in **2009(1) KLT 740** held that a complainant has no right to seek for forwarding a complaint for investigation under Section 156(3) Cr.P.C. and it is for the learned Magistrate to decide whether the investigation under Section 156(3) Cr.P.C. is to be made or an enquiry has to be conducted by himself following the procedures provided under Sections 200 and 202 of Cr.P.C. In the light of the said decision undoubtedly the finding of the court that discretion is left with the court to decide upon receipt of a complaint as to whether it is to be forwarded for investigation under Section 156(3) Cr.P.C. or whether he himself has to conduct an enquiry under Sections 200 and 202 Cr.P.C. can be taken as the correct statement of law. Obviously, thereupon, the court below declined to proceed with the complaint and rejected it. 5. In view of the position obtained in this case before considering the question whether cognizance is to be taken, firstly, for the purpose of conducting an enquiry under Sections 200 and 202 Cr.P.C. Crl.R.P.No.1111 of 2012 8 the question to be considered is whether the learned Magistrate is right in holding that the complaint was filed not in accordance with the provisions under Section 198, Cr.P.C. The allegations of the petitioner raised against the respondents would indisputably and undoubtedly reveal that the very genesis of such allegations is her alleged illicit relationship with the 4[th] respondent and abortion on getting impregnated. When that be the case and when the first respondent is married to the son of the petitioner and when all the other offences alleged are nothing but offshoot of the said main allegation how can it be said that the learned Magistrate went wrong in holding that the complaint is not filed by the person aggrieved by the offence and cognizance could be taken only upon a complaint by the persons aggrieved. The very contention of the petitioner that the learned Magistrate ought to have granted him opportunity to obtain leave itself would reveal that the learned Magistrate cannot be faulted for finding that the complaint was filed not in accordance with the provisions under Section 198 Cr.P.C. When such be the circumstances I am of the considered view that the question whether enquiry should have been conducted before taking cognizance would pale into insignificance in the peculiar circumstances obtained in this case. Crl.R.P.No.1111 of 2012 9 In the result, I do not find any reason to interfere with the order of the learned Magistrate in rejecting C.M.P.No.756 of 2012, in exercise of the revisional jurisdiction. Hence, the revision petition stands dismissed. Sd/- **C.T.RAVIKUMAR Judge** TKS