Martin Jose and Anees Jose v. State of Kerala

Crl.M.C.No.4468/2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM CR** # **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1940** ## **Crl.MC.No.4468 OF 2014** **AGAINST THE ORDER/JUDGMENT IN SC 392/2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)** **AGAINST THE ORDER/JUDGMENT IN CP 55/2013 DATED 27-06-2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PERUMBAVOOR** ## **PETITIONER/ACCUSED:** **1 MARTIN JOSE, AGED 34 YEARS SON OF JOSE, PARAYILKILUKKAN HOUSE,THUPPATHIKAVALA, VADAKUMBHAGAM KARA,MANJAPRA 683 581. 2 ANEES JOSE, AGED 57 YEARS WIFE OF JOSE, PARAYILKILUKKAN HOUSE, THUPPATHIKAVALA, VADAKUMBHAGAM KARA, MANJAPRA683 581.** **BY ADVS. SRI.GEO PAUL SRI.RADHIKA RAJASEKHARAN P. SRI.SANU MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, KALADYREP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R1 BY ADV. SRI.AJIT G.ANJARLEKAR R1 BY ADV. SRI.GOVIND PADMANAABHAN R1 BY ADV. SRI.MANU V. R1 BY ADV. SRI.RAM MOHAN.G. R1 BY ADV. SRI.G.P.SHINOD** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2102-2019, THE COURT ON 27-01-2020 PASSED THE FOLLOWING:** Crl.M.C.No.4468/2014 ## **'CR'** ## **O R D E R** ## **27/1/2020** Petitioners are the accused in SC No.392/2013 of the Additional Sessions Court, Ernakulam for offences punishable under sections 304(B), 306, 498A read with section 341 IPC. 2. The first petitioner is the son of the second petitioner. The first petitioner had married one Lincy on 31/12/2006. She committed suicide by hanging on 12/5/2009. Crime No. 531/2009 was registered by Kaladi Police under section 174 Cr.P.C. After investigation, final report was laid for offence punishable under section 498A read with section 34 IPC, alleging that the accused had physically and mentally harassed the victim and had treated her with cruelty, which forced her to commit suicide. Cognizance was taken by the Judicial First Class Magistrate Court - I, Perumbavoor. Accused appeared and contested the proceedings. Charge was framed on 22/9/2010 and the case was posted for trial. 3. When the matter was taken up for trial on 27/6/2013, the learned Magistrate, by impugned order held that the records disclosed commission of offences punishable under section 304(B) and section 306 IPC. It was noted that death had occurred within seven years from the date of the marriage. The magistrate also recorded that there was an allegation that she was subjected Crl.M.C.No.4468/2014 3 to cruelty by the accused in connection with the demand for dowry. There was history of continuous harassment, assault and torture by the accused. Learned Magistrate concluded that illtreatment meted out on her drove her to commit suicide. Consequently, ingredients of sections 304 (B) and 306 were attracted. The court held that offences were exclusively triable by the sessions court and the case was committed to the sessions court invoking section 323 Cr.P.C. 4. The above order is impugned by the accused on several grounds. It was contended that the learned Magistrate, after having taken cognizance under section 498A read with section 34 IPC on a police report and after having formed an opinion under section 240 Cr.P.C., has no jurisdiction to raise any statutory presumption of fact or law to hold that the case was exclusively triable by the sessions court. The court could not have committed the case after framing charge without any new material being brought on record. It was further contended that impugned order amounted to review of the earlier order taking cognizance and of framing charge. Another limb of contention was that the magistrate could not have proceeded on an assumption that section 323 Cr.P.C. can be invoked only if offences are exclusively triable by the court of sessions. Even assuming that the court could do so, it could not have entered into any finding on offences that appeared to be made out against the accused. It was contended that Section 304B would be attracted only if there was a specific demand for dowry. None of the witness has given statement that the Crl.M.C.No.4468/2014 4 accused had made any demand in connection with dowry. Hence, there was absolutely no material to form an opinion that ground under section 323 Cr.P.C was made out, it was argued. 5. Evidently, death took place within seven years of marriage. CW1, the mother of the deceased, had spoken about the continuous physical and mental harassment meted out on her daughter. CW2, the father of the victim, had given statement referring to several instances of physical and mental torture meted out on the victim. He had stated that the victim had once told him that she cannot live with the accused. It was specifically stated by him that the second accused had harassed referring to the monetory aspects. It was also stated that he assumed that the victim might have been tortured due to the less dowry given by CW1 and CW2. CW3 was a relative of the victim. He had also given statement touching on the physical harassment allegedly meted out on the victim. CW4, the uncle of victim, and CW5, CW6 and CW7, the neighbours, have also given statement supporting the above version. 6. To substantiate the rival contentions, the learned counsel for the petitioner and the learned Addl. Director General of Prosecutions relied on a catena of decisions. The learned Amicus curiae, Mr.S.Manu effectively assisted the court by placing before the court all the relevant decisions supporting the legal position. 7. In **Karan Singh and Another v. State of Haryana (2014 KHC 4254)** , on evidence it was held that prosecution was bad in the absence of Crl.M.C.No.4468/2014 5 materials to establish, since suicide committed by the wife was consequent to the illtreatment meted out by the relatives. In _**Bhupendra v. State of Madhya Pradesh (2014) 2 Supreme Court Cases 106)**_ Supreme Court held that suicide was one of the unnatural death falling within the ambit of section 304B IPC. It was held that an unnatural dowry death, whether homicidal or suicidal would attract section 304B IPC. It was held that section 306 IPC was much broader in its application and takes within its fold one aspect of section 304B IPC. It was further held that these two sections were not mutually exclusive. In _**Baijnath and others v. State of Madhya Pradesh ( AIR 2016 Supreme Court 5313)**_ , it was held that presumption as to dowry death under section 113B of the Evidence Act was founded on proof of cruelty or harassment of the woman dead, for or in connection with any demand for dowry, by the person charged with the offence. It was held that presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. 8. Statements of CW1 to CW 7 speak consistently of the physical and mental harassment meted out on the victim. CW2 had specifically referred to the harassment referring to the monetary aspects. With these materials available on record, the court below cannot be found fault with having arrived at a conclusion that some materials indicating offences under sections 305(B) and 306 IPC are available. Definitely, they are only the preliminary Crl.M.C.No.4468/2014 6 materials which have to be proved and established in a full fledged trial. The above versions spoken by the various witnesses will also have to stand the test of cross examination. Evidently, in the case at hand the prosecution will have to establish that there was specific demand for dowry or that harassment was in connection with the demand for dowry. 9. Section 323 Cr.P.C. confers on the Magistrate, power to commit a case for trial to a Sessions Court, at any stage of proceedings, if he finds that the case is one ought to be tried by the court of sessions. In **Gopal Kashiah v. State (AIR 1966 AP 180)** , referring to section 347 Cr.P.C. 1898, (which corresponds to Section 323 Cr.P.C, 1973) it was held that the Magistrate can commit a case without having the necessity of recording the evidence of all the witnesses who are going to be examined in the Sessions Court, as if it is a trial of a warrant case. The court negatived the contention that he should commit the offence only after recording evidence of all witnesses. In **Gunadhar Shee & Ors v. State** ( _**1995 (1) Crimes 497),**_ Calcutta High Court had held that the powers of Magistrate under Section 323 Cr.P.C. are wide enough and not circumscribed to any extent. In that case, in the course of examination of the doctor before the Magistrate, ingredients of an offence triable by the Sessions Court was revealed. The Magistrate committed the case to the Sessions court invoking section 323 Cr.P.C. It was held by the Calcutta High Court that if the case was found to be triable by the Sessions Court, the Magistrate had no other option except to commit. It was held that Sec.323 Cr.P.C was an additional safeguard or Crl.M.C.No.4468/2014 7 power provided or to be exercised by the Court when the Magistrate finds that the case should be committed after commencement of enquiry or trial. The Magistrate had no other option except to commit. ## 10. In _**Jimedar Yadav v. State of UP and another (2010 KHC 7592),**_ it was held by the Allahabad High Court that the powers of the Magistrate under Section 323, Cr.P.C. were wide in nature and not circumscribed to any extent. The words”ought to be tried by the Court of Session” gives very wide powers to the Magistrate and gives power to commit the case to Sessions, though not exclusively triable by Sessions Court. Whether the case, in the Magistrate's opinion, should be tried by the Session's Court, was the only essence in the aforesaid provision. 11.In **Bal Kishan v. Local Health Authority, Department of PRA, Govt.of NCT of Delhi State [(2002) 99 DLT 339),** it was held that even if Prevention of Food Adulteration Act provided that the offence was triable by a Metropolitan Magistrate, it will not restrict the power of the Magistrate under section 323 Cr.P.C. to commit to the Sessions Court, if it appears that the matter needs to be tried by the Sessions Court. 12. The learned Amicus curie relied on the decision reported in _**V.Veera Raghavaloo and others v State ( 1978 Crl.L.J.209)**_ , wherein it was held that section 323 Cr.P.C. gives discretion to Magistrate to commit the case considering the gravity of offence or other sufficient reason. Distinguishing the powers under section 209 Cr.P.C. and Section 323 Cr.P.C., it was held that if the materials disclose an offence exclusively triable Crl.M.C.No.4468/2014 8 by a Court of Sessions, the Magistrate has no option except to commit the case to the Sessions Court. On the other hand, if the material discloses only an offence which is triable by the Magistrate himself, he has the discretion either to try it himself or to commit. 13. In _**Bondal and others v. State of M.P. (1983 Crl.L.J.607)**_ ,a case which was committed to the Sessions Court by the Magistrate was remitted by the Sessions Court back to the Magistrate. The Magistrate thereafter proceeded with the trial and after recording evidence of the prosecution, the Magistrate committed the case again to the court of sessions for trial. Rejecting the challenge to the above order, the court held that the powers of the Magistrate under section 323 Cr.P.C were wide enough and not circumscribed to any extent, just because of the sessions courts earlier remitted the case. It cannot be said that after such re-committment by framing charge afresh, the Court had reviewed its earlier order, whereby it had impliedly discharged the accused. The view that the scope of section 347 Cr.P.C (old code) and section 323 Cr.P.C (new code) is very wide, has been consistently laid down in _**State v. Ganpat and Others (AIR 1962 Bombay 165), Thakur Ram v. The State of Bihar (AIR 1966 SC 911), Kushi Ram v. The State (AIR 1959 All 778), the State v. Rajkumar Sathi and Others (1980 CriLJ 1355) and Ramaswamy Gounder and Others v. State (1981 CriLJ 1054)**_ . 14. In _**Ummer Koya v. State of Kerala (2016 (2) KHC 324)**_ after examination of the 4[th] witness, the learned Magistrate passed the impugned Crl.M.C.No.4468/2014 9 order, converting the proceedings to committal proceeding, on a finding that the allegations make out offence under section 306 IPC. Interfering in the above order, the court held that the power of the magistrate can be exercised only if the court was convinced that the case was one which ought to be tried by the court of sessions. In the above case, the court held that no materials were brought to substantiate such a conclusion. Evidently, the above decision was purely on facts. ## 15. In _**Shyam Sunder Sinha v. State of Bihar & Ors. (2006 CRI.L.J.**_ _**(NOC) 501)**_ it was held that even if the trial starts in the Court of Magistrate, there is no bar in committing the case to Court of Sessions, if he finds that the case was one which ought to be tried by Court of Sessions. In _**Kamalashankar B Dave v. State and Another (1963(1) CRI.L.J.525)**_ the Gujarat High Court held that though the relevant provision is of wide amplitude, the fact that the case involved huge amount cannot be a reason for committal, invoking the above provision. The same view was shared by the Andhra Pradesh in _**Marakula Agamma and Others v. The State of A.P (1978 CRI.L.J.709).**_ In _**Sudhir and Others v. State of M.P. (AIR 2001 SC 826)**_ the question that came up before Supreme Court was whether, when a case and a counter case arise from the same incident, after the committal of the case involving offence exclusively triable by the sessions court, the Magistrate is bound to commit the counter case, which did not involve offence exclusively triable by Sessions Judge. Referring to sections 209 and 323 of Cr.P.C, it was held that the Magistrate before whom a case Crl.M.C.No.4468/2014 10 involving offence exclusively triable by Sessions Court reaches, he has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Though the Counter case cannot be committed in accordance with section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Sessions invoking section 323 Cr.P.C. That section incorporated in the Code to meet similar cases. The Magistrate can exercise the special power conferred on him by virtue of section 323 of Code when he commits the cross case also to the court of Sessions. Commitment under sections 209 and 323 might be through two different channels, but once they are committed, their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII. Section 323 of the Code does not make an inroad into section 209 Cr.P.C. because the former is intended to cover cases to which section 209 Cr.P.C. does not apply. 16. All the above decisions consistently hold that the power of the Magistrate under 323 Cr.P.C.is wide enough to commit the case to the Sessions Court, if it is found that it is expedient to do so, considering the nature of allegations or for any other reason. The words “it appears” and “at any stage of proceedings” indicate the wide amplitude of the above provision. This power is not circumscribed by any other provisions. If the case is one involving a Sessions offence, section 209 of Code will apply. However, If, after trial the Magistrate feels that he is unable to impose a severe sentence, section 325 of Code will apply. Section 323 of the Code Crl.M.C.No.4468/2014 11 visualizes all other situations and is not confined to any particular situation. The only governing factor is the reasonable satisfaction of the Magistrate that the matter needs to be tried by the court of Sessions. The contention that invocation of jurisdiction under section 323 Cr.P.C. after framing of charge would amount to review of the earlier order of framing charge and that once charge is framed, Magistrate could invoke jurisdiction under Section 323 of the Code only if new materials are brought out in the course of trial, cannot be sustained, in the light of decisions in Bondal and another's case (supra) and Enumula Subbarao's case (Supra). In both cases, identical contention was rejected. Having considered the entire facts in the above perspective, I do not find any reason to interfere in the impugned order. The Crl.M.C.fails and is dismissed. **Sd/-** **SUNIL THOMAS** **JUDGE** dpk Crl.M.C.No.4468/2014 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 ANNEXURE-A1: TRUE COPY OF THE FIR 531 OF 2009 OF KALADY POLICE STATION ALONG WITH FIS.** **ANNEXURE P2 ANNEXURE-A2: TRUE COPY OF THE CHARGE SHEET ANNEXURE P3 ANNEXURE-A3: CERTIFIED COPY OF THE ORDER IN CP 55/2013 OF THE HONOURABLE JFCM-I, PERUMBAVOOR DATED 27.6.2013** **ANNEXURE P4 ANNEXURE-A4: CERTIFIED COPY OF THE ORDER IN SC 392 OF 2013 OF THE HONOURABLE ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 20.5.2014**