Nithin K.R. v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH** ## **AGRAHAYANA, 1945** **CRL.REV.PET NO.86 OF 2022** **(AGAINST DISMISSAL ORDER IN CRL.M.P.NO.6389/2019 –** **PROTEST COMPLAINT FILED AGAINST REFERRED CHARGE SHEET IN CRIME NO.214/2018 OF KAYAMKULAM POLICE STATION)** ## **REVISION PETITIONER/COMPLAINANT:** **NITHIN K.R. AGED 31 YEARS MILITARY PERSONNEL, S/O.RAJAN PILLAI,** **VRINDAVANAM HOUSE, VALLIKUNNAM MURI, SOORANADU NORTH VILLAGE, KUNNATHOOR TALUK, KOLLAM DISTRICT.** **BY ADVS. S.K.MURALEEDHARA KAIMAL P.P.RAJESH** ## **RESPONDENTS/ACCUSED:** **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 THE INSPECTOR OF POLICE ISHO, KAYAMKULAM POLICE STATION-690502.** **3 N.R.JAYARAJ, DEPUTY SUPERINTENDENT OF POLICE, D.C.B., DISTRICT CRIME BRANCH, ALAPPUZHA, PIN-689122.** 2 ## Crl.R.P.No.86 of 2022 **4 ARYA AGED 25 YEARS S/O.AYYAPPAN NAIR, ARUN NIVAS, VALLIKKUNNAM MURI, VALLIKKUNNAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA -690501.(1ST ACCUSED) 5 AJITHA, AGED 52 YEARS W/O.AYYAPPAN NAIR, ARUN NIVAS, VALLIKUNNAM MURI, VALLIKKUNNAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA-690501.(2ND ACCUSED) 6 ARUN, AGED 28 YEARS S/O.AYYAPPAN NAIR, ARUN NIVAS, VALLIKKUNNAM MURI, VALLIKKUNNAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA-690501.(3RD ACCUSED) 7 RADHAKRISHNA PILLAI, AGED 55 YEARS S/O.VELAYUDHAN NAIR, KRISHNALAYAM, THALIRADI MURI OF VALLIKKUNNAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA-690501.(4TH ACCUSED). 8 SREELATHA, AGED 48 YEARS W/O.RADHAKRISHNA PILLAI, ARUN NIVAS, VALLIKKUNNAM MURI, VALLIKKUNNAM VILLAGE, MAVELIKKARA TALUK.(5TH ACCUSED).** 3 Crl.R.P.No.86 of 2022 **9 DR.PAUL K.CHANDY, PROPRIETOR, AGED 67 YEARS CHRISTOS HOSPITAL, KAYAMKULAM, RESIDING AT MATTEETHRA HOUSE, MUTTAMBALAM.P.O, MUTTAMBALAM.P.O, KOTTAYAM-686004.(6TH ACCUSED).** **BY ADVS. Vijitha V JITHIN SAJI ISAAC K.J.SAJI ISAAC(S-82) ELIZABETH VARKEY(E-25) AJEESH EMMANUEL(K/109/2012) SHAMSUDEEN O.K.(K/000687/2017)** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 10.11.2023, THE COURT ON 29.11.2023 DELIVERED THE FOLLOWING:** 4 Crl.R.P.No.86 of 2022 ## **P.G. AJITHKUMAR,J.** **----------------------------------------------------------Crl.R.P.No.86 of 2022** **----------------------------------------------------------Dated this the 29[th] day of November, 2023** ## **O R D E R** Annexure A1 order of the Judicial Magistrate of the First Class-I, Kayamkulam is under challenge in this revision petition filed under Section 397 and read with Section 401 of Code of Criminal Procedure, 1973 (Code). The court below as per the said order dismissed the complaint filed by the petitioner under Section 203 of the Code. 2. The petitioner filed Crl.M.P.No.6389 of 2019 alleging that respondent Nos.4 to 9 had committed offences punishable under Sections 120B, 315 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Sections 3 to 5 of the Medical Termination of Pregnancy Act, 1971. The learned Magistrate after conducting inquiry under Section 202 of the Code found that there was no sufficient ground to proceed against the accused. Besides the complainant, CWs.2 to 5 were also examined. Exts.P1 to P4 were marked, although 5 Crl.R.P.No.86 of 2022 Ext.P1 to P3 were not considered for want of formal proof. 3. The petitioner is the husband of the 4[th] respondent. Respondent Nos.5 to 8 are the mother and near relatives of the 4[th] respondent. Respondent No.9 is a Doctor working in Cristos Hospital, Kayamkulam, who allegedly did the unauthorised abortion. The allegation is that against the will and interest of the complainant, pregnancy of the 4[th] respondent was forcibly aborted at the instance of respondent Nos.5 to 8. Since such a termination of pregnancy was carried out by the 9[th] respondent without complying with the provisions of the Sections 3 and 4 of the Medical Termination of Pregnancy Act, he is also liable for action under Section 5 of the said Act. It is the contention of the petitioner that while he was at his place of service in the Military at Bhopal, the 4[th] respondent was forcibly taken from his house by her relatives. Even earlier, the 4[th] respondent was insisting on aborting her pregnancy. But the petitioner did not allow it and did not want the fetus to be destroyed. Further alleging that on the compulsion of the relatives, the 4[th] respondent went to the hospital of the 9[th] respondent and got the pregnancy 6 Crl.R.P.No.86 of 2022 terminated. It was after the permissible period of 20 weeks. 4. It is alleged that the petitioner, although filed complaints before the Kayamkulam and Vallikunnam Police Stations, no action was taken. Hence, the complainant had to approach the Chief Minister of the State. It was only thereafter a crime was registered on the basis of his complaint. However, the investigation was carried out in a totally inappropriate and tainted way and therefore he had to approach this Court and filed a writ petition seeking to order further investigation. It was thereafter the protest complaint filed by the petitioner as Crl.M.P.No.6389 of 2019 was inquired into and dismissed by the court below as per the impugned order. 5. The petitioner would contend that the court below failed to appreciate the statements of the witnesses and the materials on record in an appropriate manner. When the materials produced by the petitioner positively postulated an inference that there occurred miscarriage of justice in the matter of investigation and the statements of CWs.1 to 5 made out a _prima facie_ case that the pregnancy of the 4[th] 7 ## Crl.R.P.No.86 of 2022 respondent was illegally destroyed, the court below either should have ordered a further investigation or to issue process against the accused. Instead, the court below on a peremptory consideration of the matter, dismissed the complaint. In such circumstances, the petitioner has filed this revision petition, in which he seeks the following reliefs,- “i) To call for the records in crime No.214/2018 of Kayamkulam Police Station leading to the final reportrefer charge and the order dated 6.8.2021 in Crl.M.P.No.6389/2019 filed against the said refer notice by the Judicial First Class Magistrate-I, Kayamkulam and set aside the same, revise and ii) To order further investigation by CBI or a Special Investigation team or a superior police officer under the supervision of Court to bring out the actual truth of the case and to book the culprits and proceed in accordance with law for the dispensation of justice.” 6. Heard the learned counsel for the petitioner, the learned Public Prosecutor, the learned counsel for respondent Nos.4 to 8 and also the learned counsel for respondent No.9. 7. Annexure A2 is a copy of the final report in crime No.214 of 2018 of Kayamkulam Police Station. The crime was registered with the allegation that respondent Nos.4 to 9 8 Crl.R.P.No.86 of 2022 hatched a conspiracy to abort the fetus of the 4[th] respondent and in consequence of such a conspiracy, her pregnancy was terminated by respondent No.9 at his hospital at Kayamkulam without following the procedure or stipulations in the Medical Termination of Pregnancy Act. After investigation, the 3[rd] respondent filed Annexure A2 report stating that the fetus of the 4[th] respondent was happened to be miscarried as a result of her mother in law assaulting her. She allegedly pushed the 4[th] respondent causing her stomach hit against a cot, and regarding which a charge sheet was filed against the petitioner and his mother. It was crime No.1072 of 2017 of Sooranad Police Station. Although crime was registered for the offences punishable under Sections 498A, 316, 323 and 342 read with Section 34 of the IPC, a final report was filed only for the offences under Section 498A read with Section 34 of the IPC. The report proceeds to say that in order to counter the said case, the petitioner falsely lodged the present complaint. 8. The court below considered the materials produced by the petitioner along with the final report in crime No.214 of 9 Crl.R.P.No.86 of 2022 2018 of Kayamkulam Police Station and held that no prima facie case was made out. The learned counsel for the petitioner submits that the investigating officer did not venture to question even respondent No.9 and inspect the hospital to unearth the relevant records available there. As a result of such a faulty and biased investigation, sufficient material could not be brought on record. Therefore, it is absolutely necessary that a further investigation is conducted in the matter. It is further submitted that from the statement of the petitioner and other witnesses, it was proved that respondent No.4 was forcibly taken by her relatives from the house of the petitioner on 29.06.2017 and also that her fetus was intact and safe till 03.07.2017, which imperate to draw an inference that there occurred an illegal miscarriage. It is also submitted that respondent No.4 had been incessantly insisting for an abortion, which the petitioner did not consent. The said circumstances further fortify that the pregnancy was illegally terminated. It is thus submitted that the court below was carried away by the tainted report of the investigating officer. 9. The learned counsel for the petitioner placing 10 Crl.R.P.No.86 of 2022 reliance on **Popular Muthiah v. State represented by Inspector of Police [(2006) 7 SCC 296], Devendra Nath Singh v. State of Bihar and others [2023 (1) SCC 48], State of Kerala and others v. Madu and others [2021(1) KHC 351] and Anil Kumar v. Latha Mohan and others [2021(1) KHC 564]** contended that this Court in exercise of its inherent power should order a further investigation or a fresh investigation by a different agency since there occurred miscarriage of justice by a tainted and defective investigation and that resulted in an illegal and improper finding by the court below. 10. The principle of law followed in the aforesaid decisions is that the ultimate aim of all investigations and inquiry whether by the police or by the Magistrate is to ensure that those who have actually committed a crime are correctly booked and those who have not are not arraigned to stand trial. In the wake of the said settled principle only the Apex court as well as this Court held further that in a case where the investigation was not in a proper direction, the jurisdictional Magistrate is duty bound to take appropriate 11 Crl.R.P.No.86 of 2022 remedial action on receipt of a final report and also that the inquiry of the Magistrate shall be with the objective that whether the materials collected in the inquiry are sufficient to make out a case for issuing process against the accused. 11. One of the grievances of the petitioner is that the court below did not order further investigation. The right of the petitioner to get a further investigation done in Crime No.214 of 2018 of Kayamkulam Police Station was considered in the Writ Petition(C) No. 3466 of 2020 filed by him. In Annexure A4, judgment in that case, this Court held that the matter did not require any further investigation. It was observed that the Magistrate should consider the protest complaint filed by the petitioner on its merits. In view of that the question of ordering a further investigation in the matter does not arise. What remains is whether the order dismissing Crl.M.P.No.6389 of 2019 is liable to be interfered with by this Court in the exercise of the powers under Section 397 of the Code. Also, should there be an order for fresh investigation? 12. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual 12 ## Crl.R.P.No.86 of 2022 appreciation is involved, then it must be confined to the class of cases which resulted in perverse findings. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. The power of revision under Section 401 of the Code is not wide and exhaustive. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the findings by the courts below while exercising revisional jurisdiction. [See: **State of Kerala v. Puttumana Illath Jathavedan Namboodiri [(1999) 2 SCC 452]; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123]; Kishan Rao v. Shankargouda [(2018) 8 SCC 165]** . 13. CW1 is a person who was not available in station during the period when the pregnancy of respondent No.4 was said to have been illegally terminated. From the statements of CW2 and 3 what emerges is that respondent No.4 was taken to her parental house from the house of the petitioner where his mother alone was available. None of the said witnesses 13 ## Crl.R.P.No.86 of 2022 has a direct knowledge about the process of termination of pregnancy of the 4[th] respondent. 14. CW4 is the doctor who examined respondent No.4. She would state that there was no abnormality to the fetus of the 4[th] respondent till 03.07.2017. When there is a complaint for the 4[th] respondent that her pregnancy had to be terminated on account of the assault by the mother of the petitioner, evidence of CWs 1 to 4 would not help to substantiate that the pregnancy was illegally terminated after taking away the 4th respondent from the house of the petitioner. The court below noticed in the impugned order that the petitioner was directed to take steps to bring on record the documents relating to termination of pregnancy of the 4[th] respondent, but he did not. The specific allegation of the petitioner is that the illegal termination of pregnancy was done by respondent No.9 at his hospital. When respondent No.9 is an accused, it is not his burden to produce any documents in that regard. Of course, the petitioner produced Annexure A3 before this Court which is a treatment certificate issued by respondent No.9. This document does not indicate 14 Crl.R.P.No.86 of 2022 anything about the abortion of the pregnancy of respondent No.4. Thus the petitioner did not produce any material in order to show as to in what manner the pregnancy of respondent No.4 was terminated. In that context, the complaint of the 4[th] respondent, who is the best person to say how her pregnancy was terminated, that a hit against a cot following assault by her mother in law caused the miscarriage assumes importance. In the light of the said facts and circumstances, I find no reason to hold that Annexure A1 order is incorrect, illegal or improper. 15. The petitioner has a further plea that a fresh investigation is liable to be ordered in the matter. The reason stated is that the investigation conducted by the 3rd respondent was totally biased and that necessary materials were not collected and produced before the court. In **Vinay** ## **Tyagi v. Irshad Ali @ Deepak and others [2013 (5) SCC** **762]** it was held that neither the Investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even 15 Crl.R.P.No.86 of 2022 an order of ‘fresh’ or ’de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Article 21 and Article 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. This is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’. 16 Crl.R.P.No.86 of 2022 16. The petitioner being the husband, has every right to get his child in womb of his wife protected and preserved. Equally important is the right of the mother to ensure the health of the child as also her own. When such rights are in conflict, priority shall always be to that of the mother. When the petitioner alleges that the pregnancy of the 4th respondent, his wife was illegally terminated, the definite contention of the 4th respondent is that as a consequence of the assault on her, the pregnancy had to be terminated. 17. Only if the petitioner places on record materials to probabilise his allegation, there can be a direction for a fresh investigation. His allegation concerning illegal termination of pregnancy is not based on his direct knowledge. When, in the investigation already conducted, it was concluded that his allegation is false and also in the enquiry conducted by the Magistrate, it was held that there was no sufficient material to proceed against the accused, the petitioner cannot place reliance on the same materials to claim an order for fresh investigation. Apart from the materials considered by the Magistrate, nothing except Annexure A3 is placed on record. 17 Crl.R.P.No.86 of 2022 As stated, Annexure A3 does not help to prove the case of the petitioner that the pregnacny of the 4[th] respondent was illegally terminated. In such circumstances, I am of the view that this petition lacks any merit. It is liable only to be dismissed. Accordingly this petition is dismissed. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr/PV