Mohammed Kunhi & Shamseer v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF JUNE 2019 / 4TH ASHADHA, 1941** **Crl.MC.No.3908 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC 1392/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG CRIME NO.698/2008 OF Hosdurg Police Station , Kasargod** ## **PETITIONER/S:** |**1**|**MOHAMMED KUNHI, AGED 45 YEARS**| |---|---| ||**S/O.IBRAHIM, RESIDING AKBAR VILLA, BALLA**| ||**VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.**| |**2**|**SHAMSEER, AGED 35 YEARS**| ||**S/O.MOIDU, RESIDING AKBAR VILLA, BALLA**| ||**VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.**| ||**BY ADVS.**| ||**SRI.T.MADHU**| ||**SMT.C.R.SARADAMANI**| ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031.**| |**2**|**STATION HOUSE OFFICER,**| ||**HOSDURG POLICE STATION,**| ||**KASARAGOD DISTRICT - 671 315.**| |**3**|**MYMOONA, AGED 45 YERS, D/O.ERAMULLAN HAJI,**| ||**RESIDING AT BADARIYA MANZIL,**| ||**HOSDURG KADAPPURAM, HOSDURG VILLAGE,**| ||**KANHANGAD P.O., KASARAGOD DISTRICT - 671 315.**| ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Crl.MC.No.3908 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------Crl.M.C.No.3908 Of 2019 --------------------------------Dated this the 25[th] day of June, 2019. ## **O R D E R** The case projected by the petitioners (accused Nos.3 & 4) in the present Criminal Miscellaneous Case is as follows: The 3[rd] respondent has filed a petition before the 2[nd] respondent alleging that four accused persons have committed the offence punishable under Sec.498A r/w Sec.34 of the I.P.C as against her. Thereupon, a Crime, as Crime No.698/2008 of Hosdurg Police Station was registered. During the course of investigation, it was revealed that accused Nos.2 to 4 are not involved in the commission of the crime. Therefore, the final report was filed against accused No.1 alone, who is the husband of the 3[rd] respondent-de facto complainant. Based on the Final Report filed by the 2[nd] respondent, the learned Judicial First Class Magistrate Court-I, Hosdurg was pleased to take cognizance of the offence punishable under Sec.498A of the I.P.C as against the husband of the 3[rd] respondent herein, who was the sole accused in the above case and was pleased to initiate C.C.No.69/2009. The ::3:: ## **Crl.MC.No.3908 of 2019** husband of the de facto complainant, who was the only accused in the above case faced the trial and he was acquitted by Annexure-A1 judgment. During the pendency of C.C.No.69/2009 arising out of Crime No.698/2008 of Hosdurg Police Station, the 3[rd] respondent herein has filed another complaint as Anx-A2 against the very same accused, raising the very same allegations. Based on the same, the learned Magistrate was pleased to take cognizance of the offence punishable under Sec.498A r/w Sec.34 of the I.P.C and was pleased to initiate C.C.No.86/2012. Accused Nos.1 & 2 faced the trial and they were acquitted by Anx-A3 judgment for the reason that the complaint as against the 1[st] accused is hit by Sec.300 of the Cr.P.C and Article 20(2) of the Constitution of India. The accused were acquitted for the further reason that absolutely no specific instances of cruelty with date, time and place are stated by the complainant while she was examined as PW1. Under the circumstances, even if the petitioners herein who are the remaining two accused are made to face the trial, there is absolutely no chance of conviction. It is in the light of these aspects, that the instant Crl.M.C has been filed seeking the following relief: ::4:: **Crl.MC.No.3908 of 2019** _“............. to quash Annexure-A2 complaint and all further proceedings pursuant to it in C.C.No.1392/2018 on the files of the Learned Judicial First Class Magistrate's Court-I, Hosdurg, as against the petitioners, so as to secure the ends of justice.”_ 2. Heard Sri.T.Madhu, learned counsel for the petitioners (accused Nos.3 & 4) and Smt.Priya Shanavas, learned prosecutor appearing for respondents 1 & 2. Though the contesting respondent No.3 has been duly served, there is no appearance for that party. 3. It is now common ground that accused Nos.1 & 2 in C.C.No.86/2012 have faced trial and they are acquitted by Anx-A3 judgment. They were so acquitted by Anx-A3 judgment on the ground that the complaint as against the 1[st] accused is hit by double jeopardy as envisaged in Sec.300 of the Cr.P.C and Article 20(2) of the Constitution of India. The accused were acquitted for the further reason that the prosecution could not prove the specific instances of cruelty with date, time and place by the complainant while she was examined as PW1. In the previous prosecution for the very same offence, the husband of the de faco complainant was arrayed as the sole accused in C.C.No.69/2009, who faced trial and he was acquitted by Anx-A1 judgment. It was during the pendency of C.C.No.69/2009 arising out of the earlier Crime No.698/2008 ::5:: ## **Crl.MC.No.3908 of 2019** of Hosdurg Police Station, that the 3[rd] respondent has filed yet another complaint as per Anx-A2 against the sole accused in Anx-A1 as well as other three accused including the two petitioners herein which led to C.C.No.86/2012 on the file of the Judicial First Class Magistrate Court-I, Hosdurg. Accused Nos.1 & 2 in C.C.No.86/2012 have faced trial and they were acquitted by Anx-A3 judgment by the Judicial First Class Magistrate Court-I, Hosdurg. Therefore, it can be seen that the initiation of the two complaints itself is an act of victimisation and harassment caused on the accused persons concerned. Accused No.1 in C.C.No.86/2012, who is the sole accused in C.C.No.69/2009 has now been acquitted as per Anx-A3 judgment in C.C.No.86/2012 on the ground of protection of double jeopardy. That apart, accused No.2 in C.C.No.86/2012 has also been acquitted as per Anx-A3 judgment and the court below has conclusively found that there is absolutely no evidence of cruelty with date, time and place even disclosed by the complainant while she was examined as PW-1. The trial as against accused Nos.1 & 2 in Anx-A2 complaint has now resulted in Anx-A3 judgment of acquittal and the case as against the criminal proceedings arising out of Anx-A2 complaint ::6:: **Crl.MC.No.3908 of 2019** as against accused Nos.3 & 4 has been now re-filed as C.C.No.1392/2018 on the file of the Judicial First Class Magistrate Court-I, Hosdurg. It will be pertinent to refer to paragraphs 10 & 11 of Anx-A3 judgment of acquittal which read as follows: _“10. Even though PW1 deposed that she had been subjected to harassment, she could not deposed exactly which are the days on which she had been subjected to harassment and what kind of harassment she had been subjected to. During cross examination she deposed that a crime was registered against accused person as crime 698/08. She lodged this complaint due to the reason that crime was registered arraying 1[st] accused only as accused. Defence side produced certified copy of judgment in C.C.69/09. The counsel for the defence contended that this case and C.C.69/09 arose on the same set of facts. It is admitted by the PW1 that since accused 2 to 4 are not arrayed as accused in the police charge sheeted case, this complaint is filed. Learned defence counsel invited my attention to section 300 of Cr.PC and argued that double jeopardy would come into play in the instant case, and 1[st] accused is entitled for an acquittal. Both cases arose in respect of same incident. So both cases ought to have been tried simultaneously. But both counsels failed to bring it to the notice of court, cases being tried separately and case against 1[st] accused ended in acquittal. In that case PW1 has no case that accused demanded dowry and subjected her to cruelty. She points her finger against 2[nd] accused herein who is the daughter of 1[st] accused. Therefore the contention of defence counsel in my view has some force. According to her, before husband leaving to abroad after marriage there was no dispute. She has no case that 1[st] accused subjected her to any kind of physical cruelty. Even going through the evidence, in this case, there is no materials against 1[st] accused so as to fasten criminal liability under section 498A IPC. What is revealed against 1[st] accused is that he did not respond to the complaints made by her to him. That is not sufficient to attract offence under section 498A of I.P.C. Therefore I find nothing to fasten criminal liability against 1[st] accused._ _11. The next aspect is whether any materials revealed against 2[nd] accused in this case. Ext.D3 is the certified copy of the deposition given by PW1 in CC 69/09 as per which 2[nd] accused grabbed entire gold ornaments of PW1 and sold the same to 4[th] accused. That does not find a place in the evidence of PW1 in this case. Nothing was produced to prove that 10 sovereigns of gold ornaments were in the possession of PW1 at the time of marriage. Regarding throwing of articles at her house, nothing mentioned in Ext.D2, F.I.S statement lodged in CC 69/09. It is deposed by PW2 that due to the apprehension that child would be born out in the wedlock, accused subjected her to cruelty. But that does not find a place in the complaint in this case and in Ext. D2. What is revealed from the oral evidence is that 10 sovereigns of gold ornaments were given to PW1 at the time of marriage which was misappropriated by_ ::7:: ## **Crl.MC.No.3908 of 2019** _accused persons. PW1's case is that 1[st] accused misappropriated 7 sovereigns and 2[nd] accused herein misappropriated 3 sovereigns. It is stated in the complaint that 2[nd] accused had taken 3 sovereigns from the shelf. That does not find in her oral evidence. When did 2[nd] accused take the gold ornament is not revealed from the evidence. Needless to say that except oral evidence of PW1, nothing before me to prove that 10 sovereigns were provided to her. None of the overts act of demanding gold and throwing of dresses are substantiated by PW1 by stating the exact dates and time. That casts doubt as to the case put forward by complainant and make her averments remaining as bald allegations only. What are the words used by A2 to A5 for harassing PW1 do not spell out from the evidence. On the other hand, as stated herein before, there are material contradictions in the evidence given by PW1, in this case and evidence given as in CC 69/09 evidenced in Ext.D2 F.I.S and Ext.D3 deposition given in CC 69/09 regarding the incidents.”_ From a reading of impugned Anx-A3 judgment it can be seen that the very substratum of the prosecution case has been demolished by the acquittal of the co-accused. It has been held by this Court in _**Moosa v. Sub Inspector of Police,**_ reported in 2006 (1) KLT 552 (FB), _**Ashraf Kancheriyil v. State of Kerala,**_ reported in 2011 (2) KHC 812 and in _**Abbas v. State of Kerala**_ reported in 2013 (2) KLT 976 =2013 KHC 336, that as the substratum of prosecution case is demolished by the acquittal of the co-accused, the impugned criminal proceedings against the other accused persons could be quashed in appropriate cases. That apart, as already held hereinabove, the very initiation of the complaint which has led to the impugned criminal proceedings is nothing but an act of victimisation and harassment to the accused persons and abuse of the process of the court. For all these reasons, this Court is of the ::8:: ## **Crl.MC.No.3908 of 2019** view that all further continuation of the proceedings will be abuse of the process of the court. 4. Accordingly, it is ordered in the interest of justice that the impugned Anx-A2 complaint and all further proceedings pursuant thereto which has now led to the institution of C.C.No.1392/2018 on the file of the Judicial First Class Magistrate Court-I, Hosdurg as against the petitioners herein will stand quashed. The petitioners will produce a certified copy of this order to the court below concerned as well the Investigation Officer concerned. The Office of the Advocate General will also forward a copy of this order to the Investigating Officer concerned. With these observations and directions, the above Crl.M.C will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::9:: **Crl.MC.No.3908 of 2019** ## **APPENDIX** ||**APPENDIX**|| |---|---|---| |**PETITIONER'S/S**|**EXHIBITS:**|| |**ANNEXURE A1**|**THE TRUE CERTIFIED COPY OF **|**THE**| ||**JUDGMENT**<br>**DATED**<br>**5/10/2017**|**IN**| ||**C.C.NO.69/2009 ON THE FILES OF THE**|| ||**LEARNED**<br>**JUDICIAL**<br>**FIRST**|**CLASS**| ||**MAGISTRATE'S COURT-I, HOSDURG.**|| |**ANNEXURE A2**|**THE TRUE CERTIFIED COPY OF THE PRIVATE**|| ||**CRIMINAL COMPLAINT DATED 19/11/2011 IN**|| ||**C.C.NO.86/2012 ON THE FILES OF THE**|| ||**LEARNED**<br>**JUDICIAL**<br>**FIRST**|**CLASS**| ||**MAGISTRATE COURT-I, HODURG.**|| |**ANNEXURE A3**|**THE TRUE CERTIFIED COPY OF **|**THE**| ||**JUDGMENT**<br>**DATED**<br>**10/10/2018**|**IN**| ||**C.C.NO.86/2012 ON THE FILES OF THE**|| ||**LEARNED**<br>**JUDICIAL**<br>**FIRST**|**CLASS**| ||**MAGISTRATE'S COURT, HOSDURG.**||