Nazeema Syed Ali and others v. State of Kerala and Binusha Beevi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 22ND DAY OF MARCH 2018 / 1ST CHAITHRA, 1940** **Crl.MC.No. 4511 of 2013** ## **AGAINST THE JUDGMENT IN CC 84/2011 of J.M.F.C.-II,NEYYATTINKARA** ## **PETITIONERS/ A2 TO A4 :** **------------------------** **1 NAZEEMA SYED ALI, AGED 38 YEARS, (A2), W/O.SYED ALI, SYEDU MANZIL, THETTIYODU, NEAR P.P.M.JUNCTION, AYINKAMOM DESOM, PARASSALA VILLAGE, THIRUVANANTHAPURAM.** **2 SYEDU MOHAMMED KHAN,** **AGED 75 YEARS, (A3), S/O.MOHAMMED KANNU, SYEDU MANZIL, THETTIYODU, NEAR P.P.M.JUNCTION, AYINKAMOM DESOM, PARASSALA VILLAGE, THIRUVANANTHAPURAM.** **3 SYED ALI, AGED 43 YEARS, (A4) S/O.SYEDU MOHAMMED KHAN, SYEDU MANZIL, THETTIYODU, NEAR P.P.M.JUNCTION, AYINKAMOM DESOM, PARASSALA VILLAGE, THIRUVANANTHAPURAM.** **BY ADV.SRI.SHAJIN S.HAMEED** ## **RESPONDENTS/ STATE & DE FACTO COMPLAINANT :** **-------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE DETECTIVE INSPECTOR, CRIME BRANCH, C.I.D., THIRUVANANTHAPURAM.** ## **2. BINUSHA BEEVI,** **D/O.SULEKHA BEEVI, KADAYARA PUTHEN VEEDU, AMBALATHUMOOLA, KOTTUKAL DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM, PIN CODE: 695 501.** **BY SENIOR PUBLIC PROSECUTOR SRI.K.B. UDAYAKUMAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RKM** ## **Crl.MC.No. 4511 of 2013 () --------------------------** **-2-** ## **APPENDIX** ## **PETITIONERS' ANNEXURES : ------------------------** - **ANNEXURE A: CERTIFIED COPY OF THE FINAL REPORT IN C.C NO.84/2011 ON THE FILE OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-II, NEYYATTINKARA.** - **ANNEXURE B: PHOTOCOPY OF THE COMPLAINT C.M.P NO.5852/05 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE -II, NEYYATTINKARA.** - **ANNEXURE C: PHOTOCOPY OF THE AGREEMENT ENTERED BETWEEN THE 1ST ACCUSED AND 2ND RESPONDENT DATED 20/11/2007.** - **ANNEXURE D: PHOTOCOPY OF THE AGREEMENT DATED 23/11/2007 EXECUTED BETWEEN THE 1ST ACCUSED AND 2ND RESPONDENT.** ## **RESPONDENTS' ANNEXURES : NIL** - **------------------------** ## **TRUE COPY** **PA TO JUDGE** **RKM** ## **ANNIE JOHN, J.** =-=-=-=-=-=-=-=-=-=-=-=-= ## **Crl.M.C.No.4511 of 2013** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 22[nd] day of March, 2018** ## **ORDER** In this petition, which has been filed under Section 482 of the Code of Criminal Procedure, the petitioners, who are accused Nos. 2 to 4 in Crime No. 688 of 2005 of Parassala Police Station for an offence punishable under Section 498A r/w Section 34 IPC, seeks to quash all further proceedings pursuant to C.C. No. 84 of 2011 on the file of the Judicial First Class Magistrate-II, Neyyattinkara. 2. The case of the prosecution is as follows: On 09.05.2004, the first accused married the second respondent as per Muslim customary rites through Ambalathumoola Jama-ath. At the time of marriage, Rs.1,00,000/-, 50 sovereigns of gold and Rs.2,00,000/- as bank deposit was given to the 1st accused and started living as husband and wife at the house of the third accused along with accused Nos. 2 and 4. While so, in between 09.05.2004 and 04.10.2004, the first accused exploited Rs.1,00,000/- and further demanded the gold ornaments and bank deposit of the second respondent. It is also alleged that the first accused demanded an amount of Rs.1,00,000/- further as dowry Crl.M.C.No.4511 of 2013 2 and thereby harassed the 2nd respondent, both physically and mentally. On 24.09.2004, when the second respondent saw accused Nos. 1 and 2 lying on the bed and while she questioned, it was alleged that the second accused told the first accused to leave the second respondent and asked her to bring more money from her house. It is also alleged that accused No. 4 promoted the acts of other accused. Due to such harassment, the 2nd respondent consumed poison and she underwent treatment at hospital. 3. The second respondent herein filed CMP No. 5852 of 2005 before the Judicial First Class Magistrate-II, Neyyattinkara against the petitioners and the same was forwarded to the Station House Officer, Parassala under Section 156(3) of Cr.P.C. Accordingly, the crime was registered for offences under Sections 284, 307, 313, 323, 324, 383, 498A and 120B of IPC. During the course of investigation, the offence was altered to Section 498 A r/w Section 34 IPC. The 2[nd] respondent, then extorting political influence managed to transfer the investigation of the crime from the local police to the Crime Branch. The 2[nd] respondent also filed C.M.P.No.3334/2007 before the Judicial First Class Magistrate-II, Neyyattinkara under the Protection of Women from Domestic Violence Act, 2005. Further, the 2[nd] respondent filed another complaint which was forwarded under section 156(3) of Cr.P.C., by Crl.M.C.No.4511 of 2013 3 which Crime No.386/2007 was registered by the Neyyattinkara Police for offences under sections 506(ii) & 109 of the I.P.C.in between these cases, there was an attempt from the side of the first accused for settlement, but all went in ruin due to the arrogance of the 2[nd] respondent. During the course of evidence in the proceedings under Domestic Violence Act, the 2[nd] respondent withdrawn the complaint. The 2[nd] respondent then tried to reside at the house of the 3[rd] accused, which is objected by him. Therefore, the Juma-ath members took up the matter and due to their and other relative's interference, the entire subject matter was compromised between the first accused and the 2[nd] respondent. Accordingly, the matrimonial relationship between the first accused and the 2[nd] respondent was terminated upon the talaq pronounced earlier by the first accused. The monetary claim existed between the first accused and the 2[nd] respondent was also duly settled. The photocopy of the agreement entered between the first accused and the 2[nd] respondent dated 20.11.2007 is produced and maked as Annexure-C. The photocopy of the agreement dated 23.11.2007 executed between the first accused and the 2[nd] respondent is produced and marked as Annexure-D. The first accused along with the 2[nd] respondent approached the Crime Branch authorities intimating the matter of settlement, but even then a positive final Crl.M.C.No.4511 of 2013 4 report was filed by them against the petitioners and the first accused. Now it is understood that the first accused is married to another woman and is living separately. The 2[nd] respondent subsequently married another man. The first accused is presently living separately. The petitioners approached the 2[nd] respondent and informed about Annexure-A, but she ignored the plea of petitioners to approach this Court or trial court to intimate about the settlement. The 2[nd] respondent after compromising and settling the entire matrimonial dispute is now turning up with an ulterior motive to grab more money from the petitioners. The first petitioner is the sister-in-law of the first accused and the 3[rd] petitioner is her husband. The 2[nd] petitioner is aged 75 years and is an acute diabetic patient. In fact, there is no allegation of matrimonial cruelty alleged by the 2[nd] respondent as against the petitioners. Therefore, the petitioner is resorting to quash the entire proceedings on the ground that the final report does not state anything regarding section 498A of I.P.C. against these petitioners. There is no cruelty exonerated on the part of the petitioners, as evidenced from the final report. As per Annexure-A final report, the allegation as against the first petitioner is that there was illicit relationship between her and the first accused. The said allegation is alleged only to array the first petitioner as an accused. The 2[nd] Crl.M.C.No.4511 of 2013 5 respondent has alleged adultery as against the first accused, for which the 2[nd] petitioner cannot be arrayed as an accused. 4. The learned counsel for the petitioner argued that _prima facie_ , the allegation in Annexure A final report will not make out an offence under Section 498A IPC and in order to attract an offence under Section 498A IPC, the relative of the husband should have subjected the woman to cruelty. There is no such allegation as against the petitioners. The main allegation is raised against the 1[st] accused, who has misappropriated her gold ornaments and one lakh rupees. 5. When the matter has taken up for hearing, the counsel for the petitioner has submitted that the entire matter has been settled between the parties and he has also produced a copy of the documents executed in between the 1[st] accused and the de facto complainant. In the meantime, I have enquired upon the pendency of the case before the Judicial First Class Magistrate Court-II, Neyyattinkara and as per the report, the matter is still pending there as C.C.No.84/2011. 6. The learned Public Prosecutor, who appeared before this Court has stated that the matter is seemed to have been settled between the parties. But the police reported that the 2[nd] respondent told them that the matter has not been settled. Under Crl.M.C.No.4511 of 2013 6 this circumstances, he is unable to submit that this petition can be allowed. The petitioner's counsel has cited a ruling in _**Sunita Jha**_ ## _**v. State of Jharkhand & another [2010 SAR (Criminal) 847]**_ wherein the Supreme Court has held that " _if a husband was living with another woman beside his wife the same would not amount cruelty and would not attract the provision of section 498A_ . The counsel also cited a ruling in _**Onkar Nath Mishra & Others v. State (NCT of Delhi)**_ _**& another [2008 (1) KHC 217],** wherein it was held by the Apex Court that "Section 498A should not be used as a device to achieve oblique motives"_ . The learned counsel for the petitioners has stated that even after settling the entire matrimonial disputes including claims, the de facto complainant is now harassing the petitioner in order to wreak vengeance. Annexure A is the charge sheet. Annexure B is the complaint filed by the de facto complainant. Annexure-C is the agreement entered between the first accused and the 2[nd] respondent. As per that it is understood that the 2[nd] respondent was divorced by the first accused. From Annexure C and Annexure D, it has borne out that the matter has been settled between the first accused and the 2[nd] respondent and she has received the entire amount. Now the present petitioners are in-laws of the de facto complainant and they have approached this Court by stating that the first accused and the 2[nd] respondent has entered Crl.M.C.No.4511 of 2013 7 into an agreement for settlement and accordingly the matter was settled and the 1[st] accused had divorced her also. The 2[nd] respondent has given statement to the effect that the entire matter has been settled and she received the ornaments and monetary claim and agreed to withdraw the entire case. No evidence is forthcoming to connect the petitioners in causing the alleged offence. At the time of the argument, the learned Public Prosecutor has stated that the petitioners may be exonerated. Even after the notice and direction, the de facto complainant is not ready to approach this court. 7. Considering the entire matter, I find that the offence as alleged against the petitioners is not borne out from the charges and also will not stand in the light of the settlement entered into between the first accused and the de facto complainant. Therefore, the entire proceedings, including Annexure A Charge Sheet filed against the petitioners 1 to 3, is hereby quashed by invoking Section 482 of the Code of Criminal Procedure. The Criminal M.C.is disposed of as above. Sd/- **ANNIE JOHN JUDGE** True copy PA to Judge RKM