Muhammed Siyad and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** ## **Crl.MC.No.7018 OF 2018(F)** **CC 974/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, NEDUMANGAD** **CRIME NO.309/2016 OF Venjarammoodu Police Station, Thiruvananthapuram** ## **PETITIONER/ACCUSED :** - **1 MUHAMMED SIYAD, S/O ABDUL VAHAB , THIRUVILLA PUTHEN VEEDU , PIRAPPANCODE P.O. , ANNAL, KOPPAM, MANIKKAL VILLAGE, VENJARAMOODU, THIRUVANANTHAPURAM.** **2 ABDUL VAHAB S/O. ALIYARUKUNJU, THIRUVALLA PUTHEN VEEDU, PIRAPPANCODE P.O, ANNAL, KOPPAM, MANIKKAL VILLAGE, VENJARAMOODU, THIRUVANANTHAPURAM.** - **3 ABIDA BEEVI, D/O. NAFEESATBU BEEVI, THIRUVALLA PUTHEN VEEDU, PIRAPPANCODE P.O, ANNAL, KOPPAM, MANIKKAL VILLAGE, VENJARAMOODU, THIRUVANANTHAPURAM.** - **4 SOUMYA,** **D/O. ABIDA BEEVI, THIRUVALLA PUTHEN VEEDU, PIRAPPANCODE P.O, ANNAL, KOPPAM, MANIKKAL VILLAGE, VENJARAMOODU, THIRUVANANTHAPURAM.** **BY ADVS. SRI.SOORAJ T.ELENJICKAL SRI.C.R.SYAMKUMAR SRI.K.ARJUN VENUGOPAL SRI.SIDHARTH B PRASAD SRI.R.NANDAGOPAL GAYATHRI NANDAGOPAL** **Crl.MC.No.7018 OF 2018(F)** 2 ## **RESPONDENT/COMPLAINANT/STATE :** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.**| |**2**|**JESNA, D/O. JUMAILA,**| ||**KUNNUPURATHU VEEDU, ANANDAPURAM,**| ||**SANTHIGIRI P.O, KOLIYAKKOD VILLAGE,**| ||**NEDUMANGAD TALUK, THIRUVANANTHAPURAM-695 541.**| ||**R2 BY ADV. SRI.LATHEESH SEBASTIAN**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-08-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.7018 OF 2018(F)** 3 ## **P.B.SURESH KUMAR, J.** **----------------------------------------------Criminal M.C.No.7018 of 2018** **----------------------------------------------Dated this the 26[th] day of August, 2020** ## **O R D E R** This Crl.M.C. is instituted invoking the power of this Court under Section 482 of the Code of Criminal Procedure(the Code) seeking orders quashing Annexure A6 final report in Crime No.309 of 2016 of Venjarammmoodu Police Station, which is pending trial in C.C.No.974 of 2016 on the files of the Court of the Judicial First Class Magistrate-I, Nedumangadu. 2. The petitioners are accused Nos.1 to 4 in the said case. Among them, petitioners 2 and 3 are the parents of the first petitioner and the fourth petitioner is the sister of the first petitioner. The second respondent is the former wife of the first petitioner. The second respondent was divorced by the first petitioner by pronouncing Talaq on 22.01.2016 on mutual consent, after settling the disputes between them amicably with the intervention of their relatives as also the representatives of their respective Mosques. An **Crl.MC.No.7018 OF 2018(F)** 4 agreement was also entered into in this regard between the parties, in terms of which, cash, gold ornaments and other articles exchanged at the time of marriage were returned. After pronouncement of the Talaq, on 25.02.2016, the second respondent has lodged Annexure A4 private complaint alleging, among others, that the petitioners have harassed the second respondent while she was residing with them, on account of her failure to meet their demands. Annexure A4 private complaint was referred to the Police by the Magistrate under Section 156(3) of the Code and the crime aforesaid was registered on that basis under Sections 323, 406, 468, 471, 498A and 34 of the Indian Penal Code (the IPC). After investigation, Annexure A6 final report was filed in the crime which is under challenge in this Crl.M.C., alleging commission of the offence punishable under Sections 498A and 34 of the IPC. The case set out by the petitioners in the Crl.M.C. is that the materials placed on record by the Police in support of Annexure A6 do not make out a case under Sections 498A and 34 of the IPC. 3. Heard the learned Senior Counsel for the petitioners as also the learned counsel for the second respondent. 4. The learned Senior Counsel for the petitioners has taken me through Annexure A4 private complaint and the detailed statement of the second respondent recorded under Section 161 of the Code by the police in the course of the investigation conducted **Crl.MC.No.7018 OF 2018(F)** 5 in the crime registered pursuant to the said complaint. Annexure A7 is the statement of the second respondent recorded under Section 161 of the Code. The relevant portion of Annexure A7 statement dealing with the allegation of harassment meted out to the second respondent by the petitioners for her failure to meet their demands, reads thus: "സഹ��ദര� എഹ��ഴ� കറവ�കകൾ പറഞ ഹവദന���കകയ� ച�യമ�യ�രന, ഞ�ൻ പ!ൾട� ഫ�മ�ൽ ഹപ�യ� അവചരഹ��ച& പണ�ചയടക�ത�ര�കനചവനത, ചക�ണ� പശവ�ച/ ക�ര0ങൾ അതഹപ�ച& ഹന�ക�ത�ര�കനത ചക�ണമ�ണ, ഇവർ ഇങചനചയ�ചക എഹന�ട, ചപരമ�റ�യത,. ഭർത�വ, ആദ0ചമ�ചക അവചര സമ�ധ�നച�ടത�ൻ ഹന�കഹ:�ൾ ചപണ�ച< എന� മറ� പറഞ ഭർത�വ�ചന ആഹ>പ�ക�ൻ തടങ�യഹ��ൾ പ�ന?ട, ഭർത�വ, ഒന� മ�ണ�ത�യ�. അത�ന ഹCഷ� അവ�ചടയള എച/ ജ?വ�ത� വ<ചര . ബദ�മട�യ�രന XXX xxx xxx xxx ഭർത�വ�ന, അചചനഹയ� അമചയഹയ� സഹ��ദര�ചയഹയ� പറഞ മനസ�&�ക� എന�ക, സമ�ധ�ന ജ?വ�ത� ഉണ�ക�തര�നള തഹ/ട� . ഇല�യ�രന ഭർത�വ, എച/ വ?ട�ൽ വരനഹത� അവ�ചട ന�ൽകനഹത� ഇഷമ�ല�ത�രന അവർ ഒര ദ�വസചമങ�ല� ഭർത�വ, എച/ വ?ട�ൽ വര�കഹയ� ന�ൽകകഹയ� ച�യ�ൽ അവർ അഹങയറചത വ�കകൾ പറഞ പള�ചയ ഹവദന���കമ�യ�രന. എന�ക, എചTങ�ല� സ�ധനങൾ വ�ങ�തന�ൽ അവർ എചTങ�ല� ക�ര0ങൾ പറഞ ഭർത�വ�ചന വഴക പറയചമനളത, ചക�ണ, ഭർത�വ, ര�സ0മ�യ�ണ, സ�ധനങൾ വ�ങ�തന�രനത,. ഏചതങ�ല� സ�ധനങൾ വ�ങ�തന�ൽ വ�&കട�ഹ��യ� എന, പറഞ വ?ടക�ർ വഴക പറയനതചക�ണ, അത�ച/ വ�& കറഹY ഭർത�വ, അവഹര�ട പറയമ�യ�രനള." It is seen that disciplinary proceedings have been initiated against the first petitioner who is a Police Constable in the light of the crime registered against him. Annexure A11 is the statement given by the second respondent to the competent authority in connection **Crl.MC.No.7018 OF 2018(F)** 6 with the said enquiry against the first petitioner. The relevant portion of Annexure A11 statement reads thus: "ഞ�ന� SAP ക0�:�ൽ ഹപ�&?സ, ഹക�ൺസബ�<�യ� ഹജ�&� ഹന�കന മ�മദ, സ�യ�ദ� തമ�ലള വ�വ��� 29.9.2013 ൽ ഹപ�തൻഹക�ട, J.K.ആഡ�ഹറ�റ�യത�ൽ ചവY, മസ�� മത���രപക�ര� നടന. , ഭർത�വ�ച/ വ?ട�ൽ ത�മസ�ച വരഹവ സcത കറഞ ഹപ�യ� സ!നര0� കറഞ ഹപ�യ�, ഹജ�&� ച�യനത, കറഞ ഹപ�യ�, മകന, ഹ�ർന ചപണല എന? ക�രണങൾ പറഞ ഭർത�വ�ച/ ഉമയ� . ബ��യ� എചന ന�രTര� വഴക പറയമ�യ�രന **==> picture [169 x 7] intentionally omitted <==** . ഞ�ന� എന�ക, ഇഹ��ഴ� ഭർത�വ�ച/ കചട ജ?വ�ക�ന�ണ, ത�ലര0� ഭർത�വ� തമ�ൽ യ�ചത�ര അഭ�പ�യ വ0ത0�സവ� സcരഹYർY ഇല�യയ� ഇല. അവർക എചന എങചനചയങ�ല� ഒഴ�വ�കണ� എനള . 22.1.2016- ഉഹi0Cമ�യ�രന തടർന, ൽ ഭർത�വ�ച/യ� അചച/യ� ത�ലര0പക�ര� ഇര കട�ബത�ച&യ� രണ സ�>�കളചട സ�ന�ധ0ത�ൽ എച/ ഭർത�വ, എചന ത&�ക, ച��ലകയ� ഗത0�തരമ�ല�ചത ഞ�ൻ . ഉട:ട�യ�ൽ അ�ഗ?കര�കകയ� ച�യ ഉട:ട�പക�ര� വ�വ��സമയത എച/ വ?ടക�ർ നൽക�യ സcർണ�ഭരണങള�, ക�റ�, രപയ� ഭർത�വ, ത�ര�ചക തന. അത�ന ഹCഷമ�ണ ഞ�ൻ ഭർത�വ�ചനത�ചര ചവഞ�റമട, ഹപ�&?സ, ഹസഷന�ല�, തടർന, ചനടമങ�ട, ഹക�ടത�യ�ല� ഹകസ, ചക�ടത�ടളത,. ഭർത�വ� വ?ടക�ര� C�ര?ര�കമ�യ� എചന . ഉപദവ�Y�ട�ല എന�ക, ഇഹ��ഴ� ഭർത�വ�ച/ കചട ജ?വ�ക�ന�ണ, ത�ലര0�. എച/ ഭർത�വ�ച/ ഹജ�&� ക<യ�നല, ജ?വന��Cത�ന ഹവണ�യ�ണ ഹകസ,. ഇത�ൽ കടത&�യ� ഒന� പറയ�ന�ല.” 5. To a specific question put to the learned counsel for the second respondent as to how the allegations made by the second respondent against the petitioners would fall within the scope of Section 498A of the IPC, the learned counsel replied that the allegations will amount to harassment as defined in Explanation(b) to Section 498A of the IPC. The explanation (b) dealing with harassment reads thus; **Crl.MC.No.7018 OF 2018(F)** 7 “(b) 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 or valuable security or is on account of failure by her or any person related to her to meet such demand.” Even if it is taken that the statement of the second respondent given under Section 161 of the Code and before the disciplinary authority of the first petitioner are true, according to me, the same would not fall within the scope of harassment as defined in Explanation(b) to Section 498A of the IPC. Even otherwise, according to me, the private complaint and all further proceedings thereto is an abuse of the process of the Court, insofar as it is instituted after amicable settlement of all the issues between the parties to the marriage, and a complaint in the nature of Annexure A4 instituted after the settlement can only be treated as one instituted with ulterior motives. The conclusion therefore is inescapable that the intention of the second respondent in filing the private complaint is only to harass the petitioners. The court proceedings ought not be permitted to degenerate into a weapon of harassment or persecution. On this ground also, according to me, Annexure-A6 final report is liable to be set at naught [See **John Simil K.A. and Others v. State of Kerala and Another,** 2019(2) KHC 83]. **Crl.MC.No.7018 OF 2018(F)** 8 In the result, the Crl.M.C. is allowed and Annexure A6 final report pending trial before the Court of the Judicial First Class Magistrate-I, Nedumangadu in C.C.No.974 of 2016 and all further proceedings are quashed. Sd/- **P.B.SURESH KUMAR, JUDGE** rkj **Crl.MC.No.7018 OF 2018(F)** 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE TALAQUE INTIMATION ON 22/01/2016.** **ANNEXURE A2 TRUE COPY OF THE AGREEMENT. ANNEXURE A3 TRUE COPY OF THE AFFIDAVIT BEFORE THE FAMILY COURT, NEDUMANGAD IN THE MAINTENANCE CASE FILED BY THE 2ND RESPONDENT, M.C. NO. 90/2016. ANNEXURE A4 CERTIFIED COPY OF THE COMPLAINT DATED 25.02.2016 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, NEDUMANGAD. ANNEXURE A5 TRUE COPY OF THE FIR IN CRIME NO. 309/2016. ANNEXURE A6 CERTIFIED COPY OF THE FINAL REPORT. ANNEXURE A7 TRUE COPY OF THE STATEMENT RECORDED BY THE POLICE FROM THE 2ND RESPONDENT. ANNEXURE A8 TRUE COPY OF THE JAMA ATHE CERTIFICATE OF THE SUBSEQUENT MARRIAGE OF THE PETITIONER. ANNEXURE A9 TRUE COPY OF THE JAMA ATHE CERTIFICATE OF THE SUBSEQUENT MARRIAGE OF THE 2ND RESPONDENT. ANNEXURE A10 TRUE COPY OF THE ORDER DATED 15.05.2019 BY THE COMMANDANT, SPECIAL ARMED POLICE, THIRUVANANTHAPURAM. ANNEXURE A11 TRUE COPY OF THE STATEMENT MADE BY RESPONDENT NO.2 BEFORE SAP CAMP ASSISTANT, COMMANDANT OBTAINED BY THE PETITIONER UNDER RTI.**