Omanan, Dhaya and Pinky Baiju v. State of Kerala and Lakshmi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942 CRL.MC.NO.236 OF 2018(H)** **CC 2562/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHAVAKKAD CRIME NO.579/2017 OF VADANAPPALLY POLICE STATION, THRISSUR** ## **PETITIONERS/ACCUSED NOS.2 TO 4:** - **1 OMANAN, AGED 70 YEARS, S/O. MANI, KOONAKKAMBILLY HOUSE, IRINJALAKUDA, MANAVALASSERY VILLAGE, THRISSUR DISTRICT.** - **2 DHAYA, AGED 58 YEARS, W/O. OMANAN, KOONAKKAMBILLY HOUSE, IRINJALAKUDA, MANAVALASSERY VILLAGE, THRISSUR DISTRICT.** - **3 PINKY BAIJU, AGED 37 YEARS, W/O.BAIJU, KAILATHU VALAPPIL, OLLUR DESOM, EDAKUNNY, THRISSUR DISTRICT. BY ADVS.SRI.M.R.VENUGOPAL, SMT.DHANYA P.ASHOKAN** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2 LAKSHMI, AGED 29 YEARS, D/O. JAYAVATSAN, VAZHAPULLY HOUSE, THRITTHALLUR DESOM, VADANAPPILLY VILLAGE, THRISSUR DISTRICT - 680 619.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1 ADV. SRI.A.C.DEVY FOR R2 ADV. SRI.K.R.RAMISH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. ----------------------------------------Crl. M.C. No. 236 of 2018 ----------------------------------------Dated this the 2[nd ] day of December, 2020 ## O R D E R The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“...........allow this Crl.M.C. quashing Annexure-I FIR and II Final Report in C.C.No.2562/2017 on the file of Judicial First Class Magistrate Court, Chavakkad.”_ 2. Heard Smt.Dhanya P.Ashokan, learned counsel appearing for the petitioners (A-2 to A-4), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R-1 (State) and Sri.A.C.Devy, learned counsel appearing for R-2. 3. The petitioners herein have been arrayed as accused 2 to 4 among the 4 accused in the instant impugned Anx.I FIR in Crime No.579/2017 of Vadanapally Police Station, Thrissur, for offences punishable under Secs. 498A & 34 of the IPC, on the basis of the FIS given by the 2[nd] respondent lady defacto complainant on 5.5.2017 in respect of the alleged incidents which happened for the period from 1.8.2009 to 5.5.2017. The police after investigation has filed the impugned Anx.II final report/charge sheet in this case which has now led to the Crl. M.C. No. 236 of 2018 **==> picture [19 x 9] intentionally omitted <==** pendency of C.C.No.2562/2017 on the file of the JFCM, Chavakkad, as against the said accused persons for the abovesaid offences in question. 4. The gist of the prosecution case is that, A-1 is the husband of R-2 herein (lady defacto complainant) and that the petitioners herein (A-2 to A-4) are the father, mother and sister respectively of A-1. Further that, after the marriage of abovesaid spouses, A-1 (husband) has treated R-2 (wife) with cruelty and harassment and various other allegations are made against him. The allegations made as against the petitioners herein (A-2 to A-4) are only to the limited extent as follows as can be seen from the last line of page 1 of Anx.I FIS and page 2 thereof, which reads as follows: “ 2009 ആഗസസ്റ്റ് മമാസതത്തിൽ – ഭർതമാവത്തിനന്റെ വവീടത്തിൽ നവചസ്റ്റ് അവരുനട കുടത്തിയുനട ഫഫമാഫടമാ എടുക്കുവമാൻ SD കമാർഡസ്റ്റ് സമയതത്തിനസ്റ്റ് കത്തിടത്തിയത്തില്ല എന കമാരണണം പറഞ്ഞു ഭർതമാവത്തിനന്റെ സഫഹമാദരത്തി പത്തിങത്തി എനന മർദത്തിചത്തിരുന. കൂടമാനത അമ്മയുണം അച്ഛനണം എനത്തികസ്റ്റ് ശവീധനണം ഫപമാനരനണം ഭണംഗത്തിയത്തിനലെനണം നത്തിറമത്തിനല്ലനണം പറഞ്ഞു കുറ്റനപ്പെടുത്തുമമായത്തിരുന. ” 5. From a reading of impugned proceedings it can be seen that no serious allegations are raised by the 2[nd] respondent as ..4.. Crl. M.C. No. 236 of 2018 against the petitioners herein. The only allegation raised as against A-4 (sister of the husband) is that, on a day in August, 2009, A-4 had complained that R-2 had not provided the SD Card while taking the photo of child of A-4 and on that basis A-4 had assaulted R-2 etc. The allegations are not very precise and the original allegations in Malayalam language is as follows: “.........ഭർതമാവത്തിനന്റെ സഫഹമാദരത്തി പത്തിങത്തി എനന മർദത്തിചത്തിരുന.” 6. Whether the allegations that A-4 had assaulted her or had treated her with cruelty etc is not very clear. Only a solitary allegation and that too on a single day is made as against A-4. The allegations made as against A-2 & A-3 (parents-in-law) are too vague and generalized and the only allegation is that, A-3 (motherin-law) used to tease R-2 that she lacks beauty and that she does not have fair colour etc and that both the parents used to say that R-2 had not brought sufficient dowry amount etc. 7. The abovesaid allegations are too vague and generalized and no precise allegations are made. The abovesaid allegations cannot be the basis to constitute the ingredients of Crl. M.C. No. 236 of 2018 ..5.. substantive criminal offence as envisaged in Sec.498A of the IPC. Even if it is assumed that the abovesaid allegations may constitute the ingredients of 'cruelty' as understood in civil law for the purpose of matrimonial litigative proceedings etc, the same by no such way of imagination can be said to constitute the serious criminal offence as per Sec.498A of the IPC for bringing in criminal culpability for the criminal behaviour of cruelty. ## 8. Sec.498A of the IPC reads as follows: _“498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—_ _(a)any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or_ _(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._ ” 9. The Apex Court has held in the decision in _**Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC 177**_ in para 3 thereof as follows: Crl. M.C. No. 236 of 2018 ..6.. _“3.The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498-A.”_ 10. It has been held by the Apex Court in the decision in _**Gurnaib Singh v. State of Punjab [(2013) 7 SCC 108]**_ that, clause (a) of Explanation to Sec.498A of the IPC defines “cruelty” to mean “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide” and that clause (b) thereof pertains to unlawful demand and clause (a) can take in its ambit mental cruelty. It has been held by the Apex Court in _**Ghusabhai Raisangbhai Chorasiya and Others v. State of Gujarat**_ _**[(2015) 11 SCC 753]**_ that, the first limb of Sec.498A of the IPC refers to 'cruelty' and has nothing to do with 'demand of dowry', etc. Crl. M.C. No. 236 of 2018 **==> picture [18 x 9] intentionally omitted <==** 11. In the light of abovesaid aspects this Court is of the considered view that, the impugned proceedings to the extent it is directed as against the petitioners herein (A-2 to A-4) is an abuse of process of Court and its continuance is liable for interdiction at the hands of this Court in exercise of the extra ordinary inherent powers saved and preserved in terms of Sec.482 of the Cr.P.C. In that view of the matter it is ordered that the impugned Anx.II final report/charge sheet filed in Crime No.579/2017 of Vadanapally Police Station, Thrissur, which has led to the pendency of C.C.No.2562/2017 on the file of the JFCM, Chavakkad, to the limited extent it is directed as against the petitioners herein (A-2 to A-4) and all further consequential proceedings arising therefrom as against the petitioners herein (A-2 to A-4) will stand quashed and set aside. 12. It is made clear that the impugned criminal proceedings to the extent it is directed as against A-1 may go on strictly in accordance with law and untrammeled and uninfluenced in any Crl. M.C. No. 236 of 2018 **==> picture [20 x 9] intentionally omitted <==** manner by the observations and findings made by this Court herein above. 13. The petitioners may produce certified copies of this order before the Investigating Officer concerned as well as before the JFCM, Chavakkad, who is dealing with C.C. No. 2562/2017 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl. M.C. No. 236 of 2018 ..9.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **ANNEXURE I** **CERTIFIED COPY OF THE F.I.R AND F.I. STATEMENT DATED 05.05.2017 IN CRIME NO.579/2017 ON THE FILE OF VADANAPALLY POLICE STATION.** ## **ANNEXURE II** **CERTIFIED COPY OF THE FINAL REPORT DATED 31.07.2017.**