O.V.SREEDATH, K.S.ONE, and VASANTHAKUMARI v. STATE OF KERALA and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** ## **Crl.MC.No.3422 OF 2020(G)** **CC 172/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KADAKKAL** **CRIME NO.772/2015 OF KADAKKAL POLICE STATION, KOLLAM** ## **PETITIONERS/ACCUSED:** - **1 O.V.SREEDATH, AGED 41 YEARS, S/O. K.S.ONE, AARANYALAYAM, ARIPPA CHOZHIYAKKODU POST, KULATHUPPUZHA, KOLLAM DISTRICT-691 310.** - **2 K.S.ONE, AGED 77 YEARS, S/O.K.P.SUKUMARAN, AARANYALAYAM, ARIPPA CHOZHIYAKKODU POST, KULATHUPPUZHA, KOLLAM DISTRICT-691 310** - **3 VASANTHAKUMARI, AGED 72 YEARS, W/O.K.S.ONE, AARANYALAYAM, ARIPPA CHOZHIYAKKODU POST, KULATHUPPUZHA, KOLLAM DISTRICT-691 310** - **BY ADVS.SRI.G.P.SHINOD, SRI.GOVIND PADMANAABHAN, SHRI.AJIT G ANJARLEKAR** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR AT THE HIGH COURT OF KERALA, ERNAKULAM-682 031** - **2 THE STATION HOUSE OFFICER, KADAKKAL POLICE STATION, KADAKKAL POST, KOLLAM DISTRICT-691 536** - **3 SOUMYA, AGED 36 YEARS, D/O.USHMBIKA, CHALATHARA PUTHENVEEDU, VENPAKAL POST, ATHIYANOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 123** - **4 THE STATION HOUSE OFFICER, NEYYATTINKKARA POLICE STATION, NEYYATTINKKARA POST, THIRUVANANTHAPURAM DISTRICT-695 121** - **ADV. SRI.K.P.SUJESH KUMAR FOR R3 SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------Crl.M.C. No. 3422 of 2020 --------------------------------------Dated this the 6[th] day of November, 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: _“..........quash Annexure-B FIR and Annexure-C Charge Sheet.”_ 2. Heard Sri.Ajit G.Anjarlekar, learned counsel appearing for the petitioners (accused persons), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for official respondents 1, 2, & 4 and Sri.K.P.Sujesh Kumar, learned counsel appearing for the 3[rd] respondent (lady defacto complainant). 3. The petitioners would allege that, two separate crimes have been registered in two different Police Stations, in respect of same set of allegations which predominantly would allege the commission of offence as per Sec.498A of the IPC, pursuant to the petitions filed by the 3[rd] respondent lady defacto complainant. The 3[rd] respondent lady defacto complainant is the wife of the 1[st] petitioner (A-1). The 2[nd] & 3[rd] petitioners (A-2 & A-3) are the father and mother of the 1[st] petitioner. Due to difference of opinion, matrimonial disputes have arisen between said spouses. After the marriage, the 1[st] petitioner and the 3[rd] Crl.M.C. No. 3422 of 2020 ..3.. respondent was residing in his family house along with his parents. _[The said residence, for the sake of convenience, will be referred to as “marital home of the spouses”]._ The marital home of the spouses is at Kadakkal, Kollam district. The parents of the 3[rd] respondent are in Neyyattinkara, Thiruvananthapuram district. After matrimonial disputes, the couple are living separately and the 3[rd] respondent wife had been residing along with her parents at Neyyattinkara, Thiruvananthapuram district. _[The said residence, for the sake of convenience, will be referred to as “parental home of the wife”]._ 4. The 3[rd] respondent lady defacto complainant had earlier filed petition before the Kerala State Women's Commission, alleging harassment and cruelty made to her by the petitioners, whereupon the said statutory Commission had referred said petition to the Neyyattinkara Police Station, Thiruvananthapuram. Consequently, Anx.A Crime No.744/2015 of Neyyattinkara Police Station, was registered on 22.5.2015 for offences punishable under Secs.498A, 506(ii) & 34 of the IPC, in which the petitioners herein have been arrayed as the three accused therein. Accordingly to the Crl.M.C. No. 3422 of 2020 ..4.. 3[rd] respondent, she was unaware of the fact that, her petition filed before the State Women's Commission was forwarded to the Neyyattinkara Police Station, and that Anx.A Crime No.744/2015 was registered at that Police Station on 22.5.2015. Since, by then she was residing along with her parents at Kadakkal, she had later directly filed a petition before the SHO, Kadakkal Police Station, Kollam, broadly making the very same allegations. This led to the registration of Anx.B Crime No.772/2015 at Kadakkal Police Station, against the petitioners for offences punishable under Secs. 498A & 34 of the IPC, on 13.6.2015. The challenge made by the petitioners in this case is that, since there are two different FIRs registered in two different Police Stations for the very same allegations, such registration of separate FIRs in respect of the same occurrence of offences is illegal and ultra vires. 5. Now it is brought to the notice of this Court by the learned Public Prosecutor on the basis of instructions of the official respondents that, on receipt of FIR papers in relation to Anx.A FIR from the Neyyattinkara Police Station, the latter Police Station (Kadakkal Police Station) had taken a decision that Anx.B FIR Crl.M.C. No. 3422 of 2020 **==> picture [18 x 9] intentionally omitted <==** alone need be proceeded, and the transferred Anx.A FIR need not be acted upon, and that it has been treated as 'closed' for all legal and practical purposes. In view of the abovesaid specific stand of the official respondents, the abovesaid contention of the petitioners about the illegality in registration of two separate FIRs for the same offences, is no longer tenable in view of subsequent developments, as Anx.B FIR has been treated as 'closed' for all legal and practical purposes, and the police authorities have proceeded only with Anx.B FIR registered at Kadakkal Police Station. 6. Further, it is also pointed out by the learned Prosecutor that, the 2[nd] petitioner (A-2) had filed a petition before the District Police Chief, Kollam, seeking entrustment of investigation of Anx.B crime to a different agency, and whereupon the District Police Chief, Kollam, had entrusted further investigation of Anx.B Crime No.772/2015 at Kadakkal Police Station, to an officer at the rank of Deputy Superintendent of Police, District Crime Branch, Kollam, as per order dated 4.12.2015. Further it is also pointed out before this Court that, the investigating agency had thereafter completed Crl.M.C. No. 3422 of 2020 ..6.. and finalized the investigation in relation to Anx.B FIR and has also duly submitted the final report/charge sheet on 18.4.2018 before the JFCM, Kadakkal. The said Court had taken cognizance of offences, and the case is now pending as C.C. No. 172/2019 on the file of the JFCM, Kadakkal. It is reiterated by the learned Public Prosecutor that, Anx.B Crime, after its transfer to latter Police Station, has not been acted upon, and thus closed as aforestated. 7. The learned counsel appearing for the petitioners has raised another contention that, in cases of this nature, the FIR that has been initially registered, should have to been acted upon, and the latter FIR should have been closed, and that the closure of the former Anx.A FIR and the case being proceeded on the basis of the latter Anx.B FIR is illegal and improper. 8. After hearing both sides this Court is not in a position to countenance the said plea now advanced by the learned counsel appearing for the petitioners. It has been held by the Apex Court in the decisions as in _**Rupali Devi v. State of U.P. [(2019) 5 SCC 384]**_ that, offence as per Sec.498A of the Crl.M.C. No. 3422 of 2020 ..7.. IPC may have a continuing effect, inasmuch as, after the wife is separated from her marital home due to the alleged acts of cruelty and harassment by the husband and his family members etc and she may be residing at her parental home or in other place, and in such a situation, continued mental suffering on account of harassment and cruelty meted out to her by the husband and his family members in the marital home will continue to have an effect and therefore it has been held by the Apex Court that, the police station within those limits the wife is residing after she leaves from her marital home, will also have jurisdiction to investigate the crime for offence as in Sec.498A of the IPC and correspondingly, the criminal court concerned who is having jurisdiction over such police station within those limits the wife is residing after separation, will have jurisdiction to try such offence. These aspects of the matter has also reiterated by the Apex Court in the decisions as in _**Ruhi v. Anees Ahamed [(2020) DMC 485 SC = MANU/SC/0145/2020].**_ So, if the wife insists that crime is to be registered within the limits of police station where she is residing after separation in respect of offence as per Sec.498A of the IPC, etc Crl.M.C. No. 3422 of 2020 ..8.. then, orders could be passed by the competent authorities concerned to ensure that the crime is investigated by the police station, within whose limits the wife is residing after separation, and consequently the trial could also be conducted by the jurisdictional Magistrate Court concerned within whose limits the said police station is situated. Therefore, it is perfectly legal for the wife to opt the place of investigating forum and place of trial, as convenience of the lady would be the predominant factor to be taken care by the legal system for assuaging her grievances, especially in cases involving offence as per Sec.498A of the IPC. In the instant case, admittedly, marital home of spouses is at Kadakkal, Kollam district, which is the residence of the petitioners herein. Whereas, after separation the 3[rd] respondent is now residing along with her parents at Neyyattinkara, Thiruvananthapuram district. 9. Going by the abovesaid dictum laid down by the Apex Court, either the police station at Kadakkal or the police station at Neyyattinkara, will have jurisdiction to register and investigate the case. So also, either the Judicial First Class Magistrate Court, Crl.M.C. No. 3422 of 2020 ..9.. Kadakkal, or the Judicial First Class Magistrate Court, Neyyattinkara, will have jurisdiction to try the case. In the instant case, the investigation is being carried out at Kadakkal Police Station, Kollam, and the calender case is also now pending before the Judicial First Class Magistrate Court, Kadakkal. This Court is not in a position to understand to what exactly is the nature of grievances of the petitioners, as the petitioners are also residing at Kadakkal. Therefore, the abovesaid contention raised by the petitioners appear to be quite specious and has been raised only for the sake of projecting a hyper-technical argument, and cannot be countenanced as it is not bonafide one. 10. This Court need not get into those issues any longer, as it is not known as to whether the 3[rd] respondent may prefer for the transfer of case to the Court within those limits she is now residing. Those are aspects which are not now before the consideration of this Court. Therefore, no further aspects could be considered in that regard. However, one thing which has been noted by this Court is that, the 2[nd] & 3[rd] petitioners (A-2 & A-3) are elderly senior citizens aged more than 78 years and 73 years respectively, Crl.M.C. No. 3422 of 2020 ..10.. who are the parents of the 1[st] petitioner. It appears that, the 3[rd] respondent lady defacto complainant was unaware of the fact that, her petition filed before the State Women's Commission was forwarded to the Neyyattinkara Police Station, and about the registration of Anx.A Crime that Police Station. That under the impression that no crime has been registered, she had taken action to get Anx.B crime registered at Kadakkal Police Station. It is on this account, that Anx.B crime has been registered. 11. The abovesaid impugned criminal proceedings has originated essentially in the context of matrimonial disputes between the parties. This Court had suggested to the parties concerned, as to whether they are amenable for mediatory efforts and that if both sides are willing , then they could seek mediatory efforts through the appropriate Mediation Centre. 12. The learned counsel appearing for the petitioners submits that, the petitioners are seriously interested in mediatory efforts. The counsel for the 3[rd] respondent submits that, the 3[rd] respondent will not stand in the way of mediatory efforts, provided the petitioners are really sincere about the mediation process, and Crl.M.C. No. 3422 of 2020 ..11.. it is not an effect to buy time and prolong the trial. Further that, since the 3[rd] respondent is now residing at Neyyattinkara, Thiruvananthapuram district, the mediation may be ordered to be conducted at the District Mediation Centre, Thiruvananthapuram. 13. The counsel for the petitioners would point out that, since the 2[nd] & 3[rd] petitioners (A-2 & A-3) are elderly senior citizens aged more than 78 years and 73 years respectively, they may be exempted from personal appearance before the mediator after the first posting, and the 1[st] petitioner may be authorised to represent them in the mediatory proceedings, etc. 14. Accordingly, it is ordered that the petitioners herein and the 3[rd] respondent shall personally appear before the Co-ordinator of the District Mediation Centre, Thiruvananthapuram, at 10.15 am on 20.1.2021. Thereafter, the parties shall be referred to a mediator on the same day, who shall commence and attempt to complete the mediation process without much delay preferably within a period of three months. After the first appearance before the mediator, the 2[nd] & 3[rd] petitioners will stand exempted from further personal appearances, provided they Crl.M.C. No. 3422 of 2020 ..12.. given authorisation in writing that the 1[st] petitioner shall stand authorized to represent them in the mediation proceedings. If the mediation process is successful, then all the 3 petitioners and the 3[rd] respondent should sign the memorandum of mediation settlement agreement. 15. The counsel for the petitioners would point out that, since the matter is now being referred to mediation, this Court may order that further proceedings before the court below may be kept in abeyance until the conclusion of mediation proceedings. The counsel for the 3[rd] respondent also would concur with the said submission, as the matter is now referred to mediation. 16. Accordingly it is ordered with the consent of both sides that, further proceedings in relation to C.C.No.172/2019 on the file of the Judicial First Class Magistrate Court, Kadakkal, Kollam, shall stand deferred until the conclusion of abovesaid mediatory proceedings. 17. The Mediation Centre will give the final report on the outcome of mediation process and shall also forward the memorandum of mediation settlement agreement signed between Crl.M.C. No. 3422 of 2020 ..13.. the parties, if any, to the Judicial First Class Magistrate Court, Kadakkal, Kollam, as well as to the Registry of this Court. Needless to say, if the mediation process if successful, then the petitioners will be at liberty to set in motion appropriate proceedings in the light of such mediatory settlement. 18. Registry will forward certified copies of this order to the District Mediation Centre, Thiruvananthapuram, as well as to the Judicial First Class Magistrate Court, Kadakkal, Kollam, at the cost of the petitioners, for necessary information. 19. In the light of abovesaid aspects it is made clear that, the main prayer sought for by the petitioners in this Criminal Miscellaneous Case will stand rejected. With these observations and directions, and with the abovesaid liberty, the above Criminal Miscellaneous Case will stand disposed of. Sd/ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 3422 of 2020 ..14.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE-A** **A CERTIFIED COPY OF THE F.I.R DATED 22/05/2015 IN CRIME NO.744 OF 2015 OF NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM RURAL** ## **ANNEXURE-B** **A CERTIFIED COPY OF THE F.I.R DATED 13.06.2015 IN CRIME NO.772 OF 2015 OF KADAKKAL POLICE STATION, KOLLAM DISTRICT** ## **ANNEXURE-C** **A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.772 OF 2015 OF KADAKKAL POLICE STATION, KOLLAM DISTRICT**