Laxmidas Sonkavde and Rajasree v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **TUESDAY, THE 10TH DAY OF SEPTEMBER 2013/19TH BHADRA, 1935** ## **Crl.MC.No. 1352 of 2013 (A)** **--------------------------------------[CRIME NO. 1729/2012 DATED 10/12/2012 OF THALASSERY POLICE STATION , KANNUR]** **.......................** ## **PETITIONERS/ACCUSED:** **------------------------------------** ## **1. LAXMIDAS SONKAVDE, AGED 54 YEARS,** - **B-5, FLAT NO.304, FOREST COLONY, NEAR CENTER POINT SCHOOL, SEMINARY HILL, NAGPUR.** **2. RAJASREE, AGED 45 YEARS,** - **B-5, FLAT NO.304, FOREST COLONY, NEAR CENTER POINT SCHOOL, SEMINARY HILL, NAGPUR.** **BY ADV. SRI.SAIBY JOSE KIDANGOOR.** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **--------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **2. SUB INSPECTOR OF POLICE, THALASSERY POLICE STATION, THALASSERY, KANNUR DISTRICT - 670 101.** **3. SMT.REMA LAKSHMI DEVARAJAN,** **W/O.K.DEVARAJAN, AGED ABOUT 56 YEARS,KARTHIKA ILLATHATHAZA, P.O.TEMPLE GATE, THALASSERY, KANNUR DISTRICT-670 102.** **R1 & R2 BY PUBLIC PROSECUTOR SMT. MADHUBEN, R3 BY SRI.M.T.NANAIAH, SENIOR ADVOCATE, SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE, ADV. SRI.GEORGE MATHEWS.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON 10-09-2013 PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.1352/2013-A:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A: COPY OF THE FIR NO.1729/2012 DTD. 10/12/2012. ANNEXURE B: COPY OF THE BAIL APPLICATION IN CRIME NO.375/2012 DTD. 27/09/2012. ANNEXURE C: COPY OF THE ORDER IN CRIME NO.375/2012 DTD. 28/09/2012. ANNEXURE D: COPY OF THE ORDER IN M.C.A. NO.1805/2012 DTD. 08/10/12 BEFORE THE ADDL. SESSIONS JUDGE, NAGPUR. ANNEXURE E: COPY OF THE COMPLAINT PREFERRED BY THE DEFACTO COMPLAINANT DTD. 10/12/2012 BEFORE THE KANNUR DISTRICT POLICE SUPERINTENDENT.** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - ## Crl.M.C. No. 1352 of 2013 - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of September, 2013. ## ORDER This is a petition filed under Section 482 of the Code of Criminal Procedure invoking the inherent powers of this court seeking to have Annexure A FIR and Annexure E complaint quashed. 2. The facts absolutely necessary for the disposal of this petition are as follows: The daughter of the petitioners got married to the son of the third respondent. Suffice to say that within a short span of marriage, discordant notes arose between the couple and litigations began. It is seen from the records that ultimately it ended up in the daughter of the petitioners filing a complaint before the Nagpur City Police Station who registered crime against the son of the third respondent, the third respondent and the daughter of the third respondent for offence punishable under Section 498A, 377 read with Section Crl.M.C.1352/2013. 2 34 of Indian Penal Code, Sections 3 and 4 of Dowry Prohibition Act and Sections 66E, 67 and 67A of Information Technology Act. The registration of such a crime resulted in the son of the third respondent being arrested and remanded to custody. The third respondent and her daughter too had to go over to Nagpur. The claim of the petitioners is that there was mediation talks between the parties at Nagpur and as a result of the settlement reached in that mediation talk, the petitioners were assured that their daughter would have a comfortable life in future and no untoward incident would happen. Contrary to the assurance given, the torture continued. It is pointed out that as a result of the settlement arrived at between the parties, the son of the third respondent was released on bail and the third respondent and her daughter were able to get anticipatory bail. After having obtained the benefit under the settlement, it is pointed out by the petitioners that no sooner than they returned to their Crl.M.C.1352/2013. 3 native place, they laid Annexure E complaint which resulted in registration of Crime No. 1729 of 2012 of Thalassery Police Station for the offence under Sections 384 read with Section 34 of I.P.C. 3. Learned counsel appearing for the petitioners contends that even assuming all what is stated in the complaint are true, no offence is made out. Even assuming that there is an agreement as such, that does not confer any right and the ingredients necessary to attract the offence under Section 384 of I.P.C are not made out. According to the learned counsel, it is only a counter blast to the complaint laid by the daughter of the petitioners which necessitated the third respondent and her daughter to go over to Nagpur and also that her son had been remanded to custody. Since no offence is made out even if the entire allegations in the complaint are taken as true, the proceedings now initiated on the basis of such a complaint is sheer abuse of the process of court and it Crl.M.C.1352/2013. 4 is only in the interests of justice that the FIR be quashed. 4. Learned counsel appearing for the third respondent on the other hand contended that it is too early to come to the conclusion whether any offence is made out or not. Even assuming that the agreement alleged to have been executed by the third respondent is only an agreement for sale, it might fall under Section 30 of I.P.C. qualifying as a security and if that be so, it could not be said that prima facie the offence under Section 384 I.P.C. is not made out. Again, it was pointed out that the complaint Annexure E specifically alleges that the first petitioner had trespassed into the house of the third respondent intimidated her and forced her to execute the deed. The mere fact that the police has only shown Section 384 read with Section 34 of I.P.C. in the F.I.R., does not mean that other offences are not alleged. It is not a case where, according to the learned counsel for the third respondent, no cognizable offence is made out in order to Crl.M.C.1352/2013. 5 enable the police to start the investigation. The learned counsel in support of his contention relied on the decision reported in State of Madhya Pradesh v. Surendra Kori ((2012) 10 SCC 155) and Mrs. Rupan Deol Bajan v. Klanwar Pal Singh Gill (1995 (4) Crimes 171). 5. Relying on the decision reported in Manzar Sayeed Khan v. State of Maharashtra ((2009) 1 SCC 157), learned counsel appearing for the petitioners contended that it is a case where no offence is made out on the basis of the allegations in the complaint and in the light of the principle laid down in the above decision, the FIR, namely Annexure A is only to be quashed. 6. The point of discord seems to be an agreement which is not seen produced along with the petition, but a copy of the same was handed over to this court for perusal at the time of argument. It is styled as a letter of undertaking and the relevant clause reads as follows: Crl.M.C.1352/2013. 6 “She shall be compensated with entire of Nishant's share. Apart from that we assure 1/3[rd] portion belonging to Remalakshmi Devarajan a further stage with Sonal for her to claim as market value as on that date of such transaction to her or as donation to a trust of her choice.” According to the learned counsel for the petitioners, the above recital, assuming it to be true, and forms a part of the alleged agreement which even if admitted has been executed in the circumstances made mention of in the complaint, still will not constitute an offence under Section 384 of I.P.C. It is either a guarantee or an agreement for sale at best and neither of them confer any right. Section 384 of I.P.C. contemplates a situation where there is extortion as defined in Section 383 of I.P.C. By no stretch of imagination, it is stated that, the recital mentioned above can involve transfer of any property or constitute as valuable security. Crl.M.C.1352/2013. 7 7. Annexure E is the complaint which is alleged to have been laid by the third respondent which resulted in the registration of the crime in which the petitioners are shown as the accused. It narrates in detail the circumstances under which the agreement made mention of above came to be executed. Though in one portion of the complaint it is stated that on 29.4.2012 the petitioners had come over to the house of the complainant and forced her to execute the deed and in another portion it is stated that she did not heed to the demand on that day. However, it is subsequently stated that as the threat and coercion from the side of the petitioners continued, ultimately the agreement made mention of came to be executed. The specific allegation is that the first petitioner came to the house of the third respondent, threatened her with dire consequences and had even gone to the extent of stating that he would ensure that the son of the third respondent is rendered jobless and thereafter Annexure Crl.M.C.1352/2013. 8 E was executed. ## 8. Section 383 reads as follows: “383. Extortion.- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion””. Section 384 reads as follows: “384. Punishment for extortion.- Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” Section 30 defines what is a security. It reads as follows: “30. “Valuable Security”.- The words “valuable security” denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that Crl.M.C.1352/2013. 9 he lies under legal liability, or has not a certain legal right.” 9. It is difficult to believe that the agreement would have been simply executed by the third respondent. The circumstances under which the said agreement came to be executed are to be determined. The allegation in the complaint is that such an agreement came to be executed by the threat and coercion of the first petitioner. Going by the definition of Section 30, it is difficult as of now to come to the conclusion that an agreement, copy of which was handed over for perusal by this court may not constitute security. It may not be proper for this court to enter into such a finding as it is too premature. 10. Moreover, it is also necessary to determine the legal effect of the recitals in the agreement which have been extracted above which too may not be appropriate at this stage of the proceedings. Crl.M.C.1352/2013. 10 11. In the decision cited by the learned counsel for the petitioners, the facts show that that was a case where the FIR did not disclose the offence as alleged and in that circumstance the FIR came to be quashed. 12. In the decision relied on by the learned counsel for the third respondent, namely, State of Madhya Pradesh v. Surendra Kori ((2012) 10 SCC 155), it has been held as follows: “14. The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide Crl.M.C.1352/2013. 11 magnitude and cannot be seen in their true perspective without sufficient material.” So also in the decision relied on by the learned counsel reported in Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh (1995 (4) Crimes 171), it was held as follows: “Of course, as has been pointed out in Bhajan Lal's case an F.I.R. Or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR it was not possible to do so.” 13. The principles regarding the quashing of FIR are well settled. Unless and until the court is fully satisfied that no offence whatsoever is made out by the allegations in the complaint, it may not be possible for the court to quash Crl.M.C.1352/2013. 12 the proceedings. Once semblance of any cognizable offence is made out on the allegations in the complaint, then, the registration of the crime becomes mandatory and thereafter it is the prerogative of the police to investigate into the crime. This unfettered power conferred on the police cannot ordinarily be interfered with by courts. Investigation is in the realm of police function. It is neither possible for the court to put an end to an investigation without justification or to modulate the mode of investigation. Probably the court could order further investigation. But that is a different question. 14. In the case on hand, when viewed in the light of the various decisions and also in the light of the decisions referred to above, it is too early to say that no cognizable offences are made out as per the allegations in the complaint. True, the FIR as it now stands contains only offence under Section 384 read with Section 34 of I.P.C. The question as to whether that offence is attracted or not is a matter open to Crl.M.C.1352/2013. 13 debate. It could not be said that the offence cannot be attracted at all. Under such circumstances, it will not be appropriate for this court to exercise its inherent powers and quash the FIR and the complaint. This petition is accordingly dismissed. P. BHAVADASAN, JUDGE sb.