P. Usha and P. Nimisha v. Prajeesha and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933** **Crl.MC.No. 3610 of 2010()** **------------------------AGAINST CC.357/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KOOTHUPARAMBA** **....................** ## **PETITIONERS/ ACCUSED NO.3 & 4** **-------------------------------------------------** **1. P.USHA, W/O.RAMAKRISHNAN, AGED 38, RESIDING AT XV/213A, DIYA, KAPPARA, MANGATTIDOM POST, KOOTHUPARAMBA, KANNUR DISTRICT-670 643.** **2. P.NIMISHA, AGED 22, D/O.RAMAKRISHNAN, XV/213A, DIYA, KAPPARA, MANGATTIDOM POST, KOOTHUPARAMBA, KANNUR DISTRICT-670 643.** **BY ADV. SRI.T.M.MOHAMMED YOUSUFF, SENIOR ADVOCATE** **SMT.AYSHA YOUSEFF** **SMT.MOLLY JACOB SMT.RABIYA BEGOM T.K. SRI.JOBI.A.THAMPI SMT.M.KABANI DINESH SMT.FASHIYA YOUSEFF SMT.ASHIFA YOUSEFF** ## **RESPONDENTS/ COMPLAINANT/STATE** **---------------------------------------------------------** ## **1. PRAJEESHA, D/O.VASU,** **THEKKUMPADAM HOUSE, PANAMPATTA DESOM, THOLAMBRA.P.O., KANNUR DISTRICT, PIN-670 673.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **ADV. SRI.K.V.PAVITHRAN FOR R1** **SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 SRI.T.P.SAEED FOR R1** **PUBLIC PROSECUTOR MR.SABU SREEDHARAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/03/2011, ALONG WITH CRMC NO. 4196 OF 2010. THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **dmb** ## **THOMAS P. JOSEPH, J.** ## **~~~~~~~~~~~~~~~~ Crl.M.C. Nos.3610 & 4196 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29[th] day of March 2011** ## **O R D E R** These Criminal Miscellaneous Cases are filed by accused 1 to 4 in C.C.No.357 of 2010 of the court of learned Judicial First Class Magistrate, Koothuparambu requesting to quash Annexure-II private complaint, cognizance taken thereon and all further proceeding in the said case against them for offence punishable under Sec.498A of the Indian Penal Code (for short, “the IPC”). Crl.M.C.No.3610 of 2010 is at the instance of the accused 3 and 4 while Crl.M.C.No.4196 of 2010 is by accused 1 and 2. For convenience, parties are referred to accused 1 to 4. 2. C.C.No.357 of 2010 is a case which arose on Annexure-II complaint preferred by the first respondent. She was married to the first accused on 6.4.2009. She alleged mental cruelty against her at the hands of accused 1 to 4 during the time she stayed in the matrimonial home along with first accused and even when herself and the first accused were staying separate. Accused say that the allegations are vague, untrue and that Annexure-I receipt would show that even Crl.M.C. Nos.3610 & 4196 of 2010 -: 2 :- before the complaint was filed on 15.5.2010, first respondent had received the entire ornaments belonging to her. Learned Senior Advocate appearing for the accused contended that even if the allegations in Annexure-II complaint is accepted as such, no offence under Sec.498A of the IPC is made out. Learned Senior Advocate has invited my attention to the meaning of “cruelty” as explained in Clause (a) and (b) of Sec.498A of the IPC. According to the learned Senior Advocate allegations do not bring the alleged cruelty within Clause (a) and (b) of the explanations so that, an offence under Sec.498A of the IPC is attracted. Learned counsel for the first respondent while supporting the cognizance taken, contended that complaint as well as sworn statement of the first respondent has to be looked into, there are sufficient allegations regarding cruelty and that on a reading of the complaint it is revealed that there was demand for more ornaments as well and at any rate, the question whether cruelty pleaded in the complaint was likely to drive the first respondent to commit suicide or to cause grave injury or to danger to her life, limb or health (whether mental or physical) is a matter which the trial court has to decide having regard to the Crl.M.C. Nos.3610 & 4196 of 2010 -: 3 :- ## allegations in the complaint and evidence led before court. 3. To understand the rival contentions and to decide the question urged, it is necessary to refer to the averments in the complaint. The first accused is the husband of the first respondent. 2[nd] accused is the father and 3[rd] accused, sister of the first accused. 4[th] accused is the niece of the first accused, a girl studying for Masters' Degree in Hospital Administration at SME, Kottayam. In paragraphs 2 and 3 of Annexure-II complaint, it is stated that the first accused married the first respondent on April 6, 2009 and thereafter until November, 2009 they lived together as husband and wife though the relationship was not much cordial. It is stated in paragraph 3 that even on the date of marriage itself, 'accused persons' had started talking ill of relatives of the first respondent complaining that ornaments given to the first respondent was not as expected by them. In paragraph 5, it is stated that first respondent was given 35 sovereigns of ornaments at the time of marriage but, from the words of the 'accused persons' the first respondent learned that they expected her to get atleast 100 sovereigns. It is also alleged that the 'accused persons' had been harassing the Crl.M.C. Nos.3610 & 4196 of 2010 -: 4 :- first respondent saying that if she is unable to get as much ornaments as expected, better, she stayed with her former lovers. The allegation in paragraph 4 concerned the 3[rd] accused. It is stated that about two months after the marriage the 3[rd] accused under pretext that it is not safe to wear the Thali chain weighing about 10 sovereigns while travelling in buses, obtained the said Thali chain from her and instead, making use of three bangles belonging to the first respondent a smaller chain was made, Thali was connected to that and given to the first respondent. In paragraph 6, it is stated that the first accused went for job in October, 2009 and returned by the end of March, 2010. During the said time, as per direction of the first accused, first respondent stayed at her paternal home. But, even after the first accused returned to his native place he never cared to visit the first respondent or even to talk her over telephone, not to say that he did not maintain her. In paragraph 7, it is stated that 'accused persons' even told the first respondent that if she agreed for divorce they are prepared to give Rs.10 lakhs. While so, there was a mediation talk towards the end of March, 2010 at the auditorium of the Rural Bank, Crl.M.C. Nos.3610 & 4196 of 2010 -: 5 :- Koothuparambu where, on account of the conduct of the 'accused persons' their relationship with the first respondent and her relatives became more strained. The first accused described, in the course of mediation talk that first respondent is a prostitute who had eloped with her lovers and, even aborted her pregnancy. First accused stated so even in the discussion held on April 13, 2010. According to the first respondent, conduct of the first accused is something which no wife having self respect could tolerate. Paragraph 8 contains certain general allegations regarding the conduct of the 'accused persons' and in particular abusive words and misbehaviour of the first accused. In the sworn statement the first respondent stated that the 'accused persons' stated in the course of mediation talks that the first respondent is a prostitute who had gone with her lovers. 4. Now, the point for consideration is whether from the above averments in Annexure-II complaint and sworn statement of the first respondent it can be said that any offence as to be alleged is made out all or any of the accused. 5. So far as the first accused is concerned, I find specific allegations against him with the relevant dates which I have Crl.M.C. Nos.3610 & 4196 of 2010 -: 6 :- stated above. It is stated that the first accused in the course of the mediation talks held towards the end of March, 2010 and on April 13, 2010 described the first respondent as a prostitute who had eloped with her lovers and even aborted her pregnancy. It is also stated that even after the first accused returned to his native place from his place of employment by the end of March, 2009, he never visited the first respondent or even talked to her over telephone. She has also an allegation that she was not maintained by the first accused. Thus, I find specific allegations against the first accused. The question whether the said alleged conduct of the first accused would have driven the first respondent to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) is a matter which the trial court has to decide, bearing in mind the allegation made against the first accused and the evidence adduced. The contention that no case is made out against the first accused cannot be accepted. 6. What remains is whether any case against accused 2 to 4 is made out. So far as accused 2 and 4 are concerned except the general allegation that they also complained about Crl.M.C. Nos.3610 & 4196 of 2010 -: 7 :- (alleged) insufficiency of ornaments of the first respondent and offering to pay Rs.10 lakhs in case the first respondent voluntarily agreed for divorce, I do not find any specific allegation against them so as to bring them within Clause (a) or (b) explanation to Sec.498A of the IPC. Learned counsel for the first respondent submitted that in the sworn statement, the first respondent had stated that other accused also described her as a prostitute. But I do not find any such allegation in the complaint. Instead that allegation is made in the complaint pointedly to the first accused alone and none else. Hence that argument of the learned counsel cannot be accepted. 7. Though, it is alleged that on several occasions the accused persons had told the first respondent that she would be given Rs.10 lakhs if she agreed for divorce, the complaint lacks details as to which all accused among A2 to A4 and on which day, month or year atleast said so. Wild, general allegations are not sufficient. In **Pulin Behary Das** v. **Emperor** [13 Crl. L. J. 609] it is held that a complaint must contain a statement of facts relied upon as constituting the offence, in ordinary and concise language, with as much certainty as the nature of the case would Crl.M.C. Nos.3610 & 4196 of 2010 -: 8 :- admit. A complaint in which no facts are set forth but, words of the sections of the statute are literally copied, is a colourable complaint with the requirements of the statute. The Supreme Court also, in **Sharda Prasad** v. **State of Bihar** [AIR 1977 SC 1754] pointed out in paragraph 3 that general allegations in the complaint would not suffice. The Supreme Court in **Preethi Gupta and another** v. **State of Jharkhand** [2010 (3) KLT SN 96 (C.No.101) SC] alerted courts about the tendency to implicate relatives of the husband in the offence under Sec.498A of the IPC and the need to scrutinise the complaint carefully, great care and circumspection when allegations are made against the relatives of the husband, as well. The general allegations made against accused 2 to 4 are not sufficient to take cognizance of the offence under Sec.498A of the IPC. 8. So far as 3[rd] accused is concerned there is a further allegation made in paragraph 4 of Annexure-II complaint. That allegation is that under the pretext that wearing the Thali chain weighing about 10 sovereigns and travelling in buses is dangerous the 3[rd] accused got the Thali chain and making use of three bangles of the first respondent a smaller chain was Crl.M.C. Nos.3610 & 4196 of 2010 -: 9 :- purchased and the Thali was connected to that and given to the first respondent. I am afraid that allegation even if accepted is not sufficient to make the 3[rd] accused as an offender under Sec.498A of the IPC. There is no case that the 3[rd] accused by appropriating any gold ornament of the first respondent committed any offence punishable under Sec.406 or 420 of the IPC. It is the case of the accused that the first respondent has received all her ornaments even before filing the complaint and a receipt as said to be issued by the first respondent is also produced. 9. I have heard learned Senior Advocate appearing for petitioners and the learned counsel for first respondent and gone through the complaint and other relevant records I am inclined to think that there is no case made out against accused 2 to 4 for which they should stand a trial. But the case against the first accused stands on a different footing. I may not, however, be understood that I have decided against the first accused on the merit of the case which is a matter which the trial court has to decide on the strength of the evidence led. Resultantly these Crl.M.Cs are allowed in the Crl.M.C. Nos.3610 & 4196 of 2010 ## -: 10 :- following grounds :- - 1.Crl.M.C.No.3610 of 2010 is allowed. Annexure-II complaint, cognizance taken thereon and proceeding against petitioners/accused 3 and 4 in C.C.No.357 of 2010 of the court of learned Judicial First Class Magistrate, Koothuparambu are quashed to the extent it concerned the said petitioners/A3 and A4. - 2.Crl.M.C.No.4196 of 2010 is allowed in part. Annexure-II complaint, cognizance taken and proceeding against the 2[nd] petitioner/A2 in C.C.No.357 of 2010 of the court of learned Judicial First Class Magistrate, Koothuparambu to the extent it concerned the 2[nd] petitioner/A2 will stand quashed. - 3.Learned Magistrate is directed to proceed with the case against the first accused and dispose of the same as provided in law untrammelled by any observation or finding contained in this order as against the first accused. ## **THOMAS P. JOSEPH, JUDGE.** Jvt