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High Court of KeralaDivision BenchDismissed

N.M. Safiya and Fella Fathima (minor) v Abdul Asees Kutasseri and Shoukathali

Case / Petition Number:OP (FC).771 OF 2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Harilal
  • C. S. Dias
Judgment Date
2020-01-09
Court Decision / Holding
Original petition is dismissed.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • N.M. Safiya
  • Fella Fathima (minor)

Respondents

  • Abdul Asees Kutasseri S/O Muhammed
  • Shoukathali S/O Muhammed

Legal Representation & Advocates

Counsels for Petitioners

  • • Smt. S. Smitha (Parakkal)

Counsels for Respondents

  • • Sri. P. Venugopal

Case Synopsis & Summary

This petition under Article 227 of the Constitution challenges Ext.P6, a Family Court order directing summons for a copy of a 164(5) Cr.P.C. statement in Crime No.274/2016. The petitioners, N.M. Safiya and her minor daughter Fella Fathima, contend that the 164(5) statement should not be disclosed before final report/charge sheet is filed, a view supported by Athulya v. State of Kerala and State of Karnataka by Nonavinakere Police v. Shivanna. The first respondent, Abdul Asees Kutasseri, seeks the statement to confront the petitioners in OP No.373/2015, claiming the document would reveal contradictions between police statements and pleadings. The Sessions Court had previously dismissed a similar application on grounds that the respondent was not a party to the proceedings. The Family Court, however, allowed the summons, holding that it has power to summon 164(5) material, particularly after a final report has been filed. The High Court, noting that final report in Crime No.274/2016 has been filed and the case committed to the Sessions Court as S.C.No.274/2015, held that Athulya and Shivanna do not apply to these facts but upheld the impugned Ext.P6 order, observing no illegality or irregularity. The petition is dismissed. The decision clarifies that post-final-report circumstances may permit summarizing 164(5) material for proper defense assessment.

Provisions of Law Cited

Article 227 of the Constitution of IndiaSection 164(5) of Cr.P.C.Section 173 of Cr.P.C.

Legal Doctrines & Maxims

  • 164(5) statements not to be disclosed until final report/charge sheet is filed under Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Ext.P6 (I.A.1589/2019) allowing summons to the 164(5) statement is not sustainable. The 1st respondent had earlier approached the Sessions Court for a copy of the 164(5) statement; the Sessions Court dismissed on the ground that the 1st respondent was a stranger to the proceedings. Hence Ext.P4 is barred by law, and the Family Court ought to dismiss Ext.P4. They rely on Athulya v. State of Kerala and State of Karnataka by Nonavinakere Police v. Shivanna to contend that the contents of 164(5) statements shall not be disclosed until the final report/charge sheet is filed. They argue that disclosure before final report would prejudice rights and that the court lacks power to compel production of the statement before finalization of the case. The petitioners submit that the absence of final report in similar cases justifies non-disclosure, and that summoning the document would be improper without final report and contrary to binding precedents.

Contentions of Respondents

The respondents contend that summoning the 164(5) statement is relevant to substantiate the defense, showing contradictions between the statements of the petitioner before the police and in the petition OP No.373/2015. The 1st respondent seeks the document to prove misappropriation allegations and contradictions, arguing that final report being filed does not extinguish the relevance of the 164(5) statement for purposes of defense and proper adjudication in OP 373/2015. They assert the Family Court has power to summon such documents when necessary for fair determination, as the disclosure is to be used for cross-checking consistency rather than as evidence of guilt at this stage. They challenge the petitioners’ reliance on Athulya and Shivanna, arguing those precedents do not preclude post-final report disclosure in the present factual matrix.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Athulya v. State of Kerala2019 (5) KHC 920DistinguishedThe court notes these decisions hold that contents of 164(5) statements should not be disclosed until final report/charge sheet, but held they do not apply to the facts since a final report has been filed in the present case.
State of Karnataka by Nonavinakere Police v. Shivanna2014 (2) KLT 767 (SC)DistinguishedSimilarly distinguished; relied upon for the general principle but not applicable under the present facts due to final report filing.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** **OP (FC).No.771 OF 2019** **AGAINST THE ORDER IN I.A.NO.1589/2019 IN OP 373/2015 OF FAMILY COURT, MALAPPURAM** ## **PETITIONER/S:** - **1 N.M.SAFIYA,AGED 36 YEARS D/O.KUNJAHAMMEDMOULAVI,THONDIYIL HOUSE, VELLUVAMBRAM.PO,MALAPPURAM DISTRICT-676517.** - **2 FELLA FATHIMA,(MINOR), AGED 7 YEARS MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN THE 1ST PETITIONER N.M.SAFIYA ,THONDIYIL HOUSE,VELLUVAMBRAM PO,MALAPPURAM DISTRICT-676517.** **BY ADV. SMT.S.SMITHA (PARAKKAL)** ## **RESPONDENT/S:** - **1 ABDUL ASEES KUTTASSERI S/O MUHAMMED,KUTTASSERI VEEDU,MELMURI.P.O, MALAPPURAM DISTRICT-676517,REPRESENTED BY POWER OF ATTORNEY HOLDER KHADEEJA (CORRECTED)** **REPRESENTED BY POWER OF ATTORNEY HOLDER KHADEEJA,'W/O UNNI MUHAMMED,KUNNATHU VEEDU, ANDIYOORKUNNU,KOTTAPPURAM,KONDOTTY TALUK, MALAPPURAM DISTRICT-673637'** **CAUSE TITLE OF THE ORIGINAL PETITION IS CORRECTED AS -VIDE ORDER DATED 27/12/2019.** **2 SHOUKATHALI, S/O.MUHAMMED,KUNNATH NADUTHODY HOUSE,PALLIYALIL,IRUMBOZHI AMSOM, PAPPINIPPARA DESOM,ERNADU TALUK, PIN-676122.** **R1 BY ADV. SRI.P.VENUGOPAL (1086/92)** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.771 OF 2019** ..2.. ## **JUDGMENT** ## **Dated this the 9th day of January 2020** ## **C.S.DIAS,J.** This original petition is filed under Article 227 of the Constitution of India, challenging Ext.P6 order passed by the Family Court, permitting the 1[st] respondent to summon a copy of statement given by the 1[st] petitioner, under Section 164(5) of the Code of Criminal Procedure in Crime No.274/2016 of Malappuram Police Station, from the Additional Sessions Court-I, Manjeri in S.C.No.274/2016, for the purpose of confronting the 1[st] petitioner. 2. The case of the petitioners is that, they are the petitioners in O.P.No.373/2015. The 1[st] respondent is the husband of the 1[st] petitioner and the 2[nd] respondent is the brother-in-law of the 1[st] respondent. **OP (FC).No.771 OF 2019** ..3.. 3. The 1[st] respondent filed Ext.P2 application before the Additional Sessions Court-I, Manjeri, seeking a certified copy of the statement given by the 1[st] petitioner recorded under Section 164(5) of Cr.P.C. The Sessions Court by Ext.P2 order dismissed the application. 4. Subsequently, the 1[st] respondent filed I.A.No.1587/2015 before the Family Court, seeking to summon the documents pertaining to the above statement given by the 1[st] petitioner in the above sessions case. The application was opposed by the 1[st] petitioner by filing Ext.P5 counter affidavit. The Family Court, after considering Ext.P4 application and Ext.P5 counter affidavit, allowed the application by Ext.P6 order, directing to issue summons to the Additional Sessions Court-I, Manjeri, to furnish a copy **OP (FC).No.771 OF 2019** ..4.. of the Section 164(5) statement given by the 1[st] petitioner. 5. The petitioners have contended that Ext.P6 order passed by the Family Court is erroneous and wrong, and is an infringement of the 1[st] petitioner's fundamental right to life as guaranteed under Article 21 of the Constitution of India. 6. Heard Smt. Smith S.Parakkal, the learned counsel for the petitioners and Sri.P.Venugopal, learned counsel for the respondents. 7. The learned counsel for the petitioners submits that Ext.P4 application filed by the 1[st] petitioner was unsustainable by law because the 1[st] respondent had earlier approached the Sessions Court, seeking a copy of Section 164(5) statement. But, the Sessions Court by Ext.P2 order had dismissed **OP (FC).No.771 OF 2019** ..5.. the application, on the ground that the 1[st] respondent is a stranger to the proceedings and, therefore, the 1[st] respondent is not entitled to get a copy of the said statement. Hence, the 1[st] respondent's second application (Ext.P4) is barred by law. The Family Court ought to have dismissed the application on the said sole ground. 8. The counsel for the petitioners relied on the decision of this Court reported in _**Athulya**_ v. _**State of Kerala [2019 (5) KHC 920]**_ and the decision of the Hon'ble Supreme Court in _**State of Karnataka by Nonavinakere Police**_ v. _**Shivanna [2014 (2) KLT 767 (SC)]**_ to drive home her contention that, a statement given under Section 164(5) of Cr.P.C. is not liable to be disclosed till the final report/charge sheet is filed under Section 173 of Cr.P.C. **OP (FC).No.771 OF 2019** ..6.. 9. The learned counsel for the 1[st] respondent on the other hand contended that it is to substantiate the 1[st] respondent's defence in the written objection, and to prove that the 1[st] petitioner has given contradictory statements before the police and in the original petition,the 1[st] respondent has sought to summon the above document. 10. According to the learned counsel for the respondent, before the Police the 1[st] petitioner had stated that the 1[st] respondent had taken away 46 sovereigns of her gold ornaments and that her money was taken away by one Salim. However, in O.P.No.373/2015, which was subsequently instituted after the above crime, the 1[st] petitioner has pleaded that the 1[st] respondent has misappropriated 100 sovereigns of her gold ornaments. It is **OP (FC).No.771 OF 2019** ..7.. to prove the above inconsistency in the 1[st] petitioner's statement and pleadings that the 1[st] respondent requires the above document produced. 11. The Family Court, after considering the above contentions, by Ext.P6 order has directed the above document to be summoned. 12. Having considered the pleadings on record and the documents that have been produced, and after hearing the counsel for the parties, we hold that the contention of the counsel for the petitioners that the court is powerless to summon Section 164(5) statement is unsustainable in law. The decisions relied on by the learned counsel for the petitioners in _**Athulya**_ and _**State of Karnataka by Nonavinakere Police**_ (supara) have categorically laid down the law that the contents of Section 164(5) statement shall **OP (FC).No.771 OF 2019** ..8.. not be disclosed until the final report/charge sheet is filed under 173 of the Cr.P.C. 13. Admittedly, the Malappuram Police has filed its final report in crime No.274/2016, on the basis of which the case has been committed to the Sessions Court and the case has been numbered as S.C.No.274/2015. 14. In view of filing of the final report in the crime, the decisions in _**Athulya**_ and _**State of Karnataka**_ (supra) do not apply to the facts and circumstance of this case. 15.Therefore, we do not find any reason, that precludes the Family Court from exercising its power to summon the above document after the final report has been filed. The reason and purpose put forth by the 1[st] respondent, to summon the document, is for the proper determination of **OP (FC).No.771 OF 2019** ..9.. O.P.No.373/2015. We do not find any illegality or irregularity or impropriety in Ext.P6 impugned order passed by the Sessions Court, warranting interference of this Court under Article 227 of the Constitution of India. This original petition is dismissed. **Sd/K.HARILAL JUDGE** SB/10/01/2020 **Sd/C.S.DIAS JUDGE** **OP (FC).No.771 OF 2019** ..10.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 20.06.2015 IN C.M.P.NO.376/2015 IN MC NO.7/2015 ON THE FILES OF THE JFCM-1,TIRUR.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 24.07.2018 IN CRL M.P.NO.1470/2018 ON THE FILES OF THE SESSIONS COURT 1,MANJERI,IN SESSIONS CASE NO.274/2016** - **EXHIBIT P3 TRUE COPY OF THE I.A.NO.1620/2018 IN OP NO.373/2015 BEFORE THE FAMILY COURT,MALAPPURAM** - **EXHIBIT P4 TRUE COPY OF THE IA NO.1587/2019 IN OP NO.373/2015 ON THE FILES OF THE FAMILY COURT,MALAPPURAM** - **EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 19.11.2019 AS FILED BY THE PETITIONERS** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 26.11.2019 IN I.A.NO.1589/2019 IN OP 373/2015 ON THE FILES OF THE FAMILY COURT,MALAPPURAM.** ## **RESPONDENTS EXTS: NIL** ## **// TRUE COPY //** **P.A TO JUDGE**