RAMESH KUMAR v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942** ## **Crl.MC.No.3214 OF 2016** **AGAINST CP 23/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, PATHANAMTHITTA** **CRIME NO.868/2011 OF KONNI POLICE STATION, PATHANAMTHITTA DISTRICT** ## **PETITIONER/ACCUSED NO.1** **RAMESH KUMAR AGED 31 YEARS, S/O. RADHAKRISHNAN NAIR, RAMESH BHAVAN, MURINGAMANGALAM KACHANATH, AIYRAVAN VILLAGE, PATHANAMTHITTA.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS/STATE/INFORMANT:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031(CRIME NO.868/2011 OF KONNI POLICE STATION, PATHANAMTHITTA DISTRICT)** **2 PRABHAKARAN NAIR AGED 61 YEARS, S/O KOCHU KUNHU PILLAI, PUTHENVEETTIL MUTHUPEZHUMKAL, ARUVAPPULAM VILLAGE, ARUVAPPLULAM MURI.** **R2 BY ADV. SRI.V.N.RAMESAN NAMBISAN** ## **OTHER PRESENT:** ## **R1 BY SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3214 OF 2016 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.MC.No.3214 OF 2016 ---------------------------------------------Dated this the 18[th] day of December, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"…...........to quash all further proceedings in CP No.23/2015 on the file of the Judicial Magistrate of First Class-II, Pathanamthitta, as it is an abuse of process of court.”_ 2. Heard Sri. S. Rajeev, learned Counsel appearing for the petitioner (accused no.1), Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala and Sri.V.N. Ramesan Nambeesan, learned Counsel appearing for contesting respondent no.2 ( _de-facto_ complainant). 3. The petitioner is now accused no.1 in Committal Proceedings C.P. No.23/2015 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta, which in turn has Crl.MC.No.3214 OF 2016 3 arisen out of Annexure-I Crime No.868/2011 of Konni Police Station. The said Annexure-I FIR in Crime No.868/2011 of Konni Police Station has been initially registered under Section 174 of the Code of Criminal Procedure (Cr.P.C.) on account of the unnatural death of lady victim in this case. The police after investigation has altered the offenses and included in the accused array, the petitioner herein as accused No.1 and his mother as accused No.2 therein, among the two accused therein for offences punishable under Sections 306, 498A, read with Sec.34 of the Indian Penal Code (I.P.C.). Thereafter the police has completed the investigation and has filed Annexure-II final report/charge sheet in the said crime No.868/2011 of Konni Police Station, which has now led to the pendency of Committal Proceedings, C.P. No.23/2015 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta. On account of the stay granted in this petition, the Committal Proceedings has not been completed and it appears that the case has not so far been committed by the learned Magistrate to the Session's court, concerned. 4. The brief of the prosecution allegation in this case is Crl.MC.No.3214 OF 2016 4 that the petitioner (A1) is the husband of the deceased lady victim, aged 22 years at the time of death and that the A2 is the mother of the 1[st] petitioner (mother-in-law of the victim) and that the accused persons have subjected the lady victim to cruelty and harrassment and that they have committed the offence as per Sec.498A of the of the I.P.C. and further that the lady victim had, thereafter committed suicide by lighting herself after pouring kerosene on 13.12.2011 and that the accused persons have aided the deceased victim to commit suicide by their acts, etc. 5. Sri. S. Rajeev, learned Counsel appearing for the petitioner has made various submissions and contentions by placing reliance on the materials in Annexure-I, FIS and Annexure-II, Final Report as well as in Annexure-III dying declaration of the deceased lady victim recorded by the learned Magistrate before her death, to point out that the prosecution has not made out any case to show that the petitioner could be attributed to have instigated and goaded the lady victim to commit suicide and that no allegations of cruelty or demand of dowry are made as against the petitioner herein and hence no Crl.MC.No.3214 OF 2016 5 materials are there to disclose criminal culpability against the petitioner for the alleged offences as per Secs.498A & 306 of the I.P.C., etc. The learned counsel appearing for the petitioner has taken this Court's attention to some of the statements of the Charge Witnesses referred to in Annexure-II, Final Report/Charge Sheet as well as to Annexure-III dying declaration of the deceased victim. 6. Per contra, the learned Public Prosecutor has also placed reliance on the said materials and also on the statement dated 03.10.2016, filed by the Investigating Officer concerned and would totally deny the abovesaid contentions of the petitioner and would point out that, at any rate, these aspects now canvassed by the petitioner would require effective and proper judicial evaluation of the facts and circumstances of the case after considering the evidential materials on record placed in the Final Report/Charge Sheet and that it may not be right and proper for this Court to quash the impugned criminal proceedings at this stage and the petitioner has not even sought the remedy of discharge. Further it is pointed out that on account of the pendancy of this criminal miscellaneous case the Crl.MC.No.3214 OF 2016 6 learned Magistrate could not commit the case to the Sessions Court, concerned, etc. 7. The learned counsel appearing for the 2[nd] respondent ( _de-facto_ complainant), who is a close relative of the deceased lady victim, has also adopted the submissions and contentions raised by the learned Prosecutor. 8. After hearing both sides this Court is of the considered view that though some of the submissions raised by the learned counsel for the petitioner would deserve serious consideration, the same might require meticulous judicial evaluation of the facts and circumstances of this case based on the evidences and materials on record, particularly in the Final Report at Annexure-II, etc. 9. These aspects of the matters could be advanced by the petitioner by filing an appropriate application for discharge before the Sessions court, concerned after the case is committed to said court. 10. After the Sessions court considers on merits the rival pleas in the discharge application and renders a decision, the aggrieved person thereof can certainly challenge the said order Crl.MC.No.3214 OF 2016 7 in the manner known to law, by filing appropriate petition before this Court. At that stage, this Court may be better equipped to have a thorough and comprehensive examination of various issues of the matter and would also have the advantage of considering the judicial evaluation of the facts ad circumstances of the case rendered at the instance of the Sessions court. 11. Taking note of all these aspects, this Court is of the considered view that it may not be right and proper for this Court to enter into these aspects of the matter, especially as the petitioner has got a vital statutory remedy by filing such application and therefore, this Court may, for the time being, desist from making judicial evaluation of the facts and circumstances of the case, especially as this Court is essentially vested with the realm of judicial supervision. 12. The learned counsel appearing for the petitioner has placed reliance on various decisions of the Apex Court and this Court to highlight the aspects regarding the ingredients to be satisfied for the offence as per Sec.107 (abetment) and that as per Sec.306 (abetment of suicide) o the Indian Penal Code Crl.MC.No.3214 OF 2016 8 (I.P.C.), etc. The said decisions are _**Gurucharan Singh v. State of Punjab**_ [(2020) 10 SCC 200]. It will be profitable to refer paragraph Nos.10 & 15 of the illustration of the of the Apex Court in _**Gurucharan Singh v. State of Punjab**_ [(2020) 10 SCC 200], which read as follows:- _“10. The submissions of the learned Counsel have been considered. In order to give the finding of abetment under section 107 IPC, the accused should instigate a person either by act of omission or commission and only then, a case of abetment is made out. In the present case however, there is no direct evidence of cruelty against the husband or the inlaws. There is nothing on record to show which particular hope or expectation of the deceased was frustrated by the husband. Evidence is also lacking on wilful neglect of the appellant, which led to the suicidal death. Whereas contrary evidence is available to suggest that care and treatment was given to the deceased in the matrimonial home and in the hospital, and during the three years of marriage, there was no instance of maltreatment, attributable to dowry demand. The demand of Rs. 20,000/- for purchase of a plot (in front of the residence which might have incidentally become available for sale just at that time), after three years of marriage, was ruled out by the trial Court as the possible cause for the suicidal death. In any case, PW2 stated that this sum was a “cash loan” asked for buying the plot. Thus, a loan may have been sought by the accused which could not be given. But there is nothing to show that the deceased was harassed on this count, in the matrimonial home. In the face of such material, it is difficult to conclude that Shinder Kaur was pushed to commit suicide by the circumstances or atmosphere created by the appellant._ _15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to_ Crl.MC.No.3214 OF 2016 9 _be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.”_ 13. In the light of these aspects it is ordered that the petitioner will be at liberty to file appropriate application for discharge before the Sessions court, concerned after the starts committal to the said court and al the abovesaid factual contentions and legal aspects may be urged by the petitioner in a comprehensive manner. 14. Accordingly it is ordered that the interim stay granted in this case, will stand vacated and the Judicial First Class Magistrate Court-II, Pathanamthitta, may ensure that the committal proceedings in M.C. No.24/2016 (arising out of crime No.868/2011 of Konni Police Station), will finalise the said committal proceedings. 15. The petitioner may, immediately thereafter, file an application seeking discharge before the said court, without any further delay and the Sessions court, concerned will ensure that Crl.MC.No.3214 OF 2016 10 the application for discharge is duly consideration on merits and after affording reasonable opportunity of being heard to the petitioner as well as to the learned Public Prosecutor and the learned counsel appearing for the _de-facto c_ omplainant, without much delay, preferably within a period of 6 weeks, at any rate, within the outer time limit of 8 weeks from the date of filing of such application. 16. The discharge application need to be considered only if it is filed before the framing of charges by the Sessions court, concerned. The Sessions court will consider the various submissions and contentions of the petitioner that he may advance as well as the various case laws urged by him, after hearing the aforesaid parties concerned may take a rendered decision in the matter, as aforestated. All contentions of the petitioner are left open to be raised in the manner known to law. 17. It is made clear that this court has not entered into the merits of the controversy, in any manner, and the Sessions court may independently decide the application for discharge in accordance with law after affording reasonable opportunity of Crl.MC.No.3214 OF 2016 11 being heard, as aforestated. 18. Now it is also stated by the learned counsel appearing for the petitioner that in view of his employment obligations the petitioner is now working abroad, etc. It is made clear that the petitioner will be at liberty to file the discharge application before the Sessions court, through his learned counsel, who may enter appearance on the basis of memo of appearance. It is also made clear that the above direction to afford opportunity of hearing to the 2[nd] respondent ( _de-facto_ complainant) has been made in the discharge application in peculiar facts and circumstances of the case. Eventhough it is well established that in consideration of discharge application in a police charge sheeted case, the _de-facto_ complainant/first informant does not have any statutory right to be heard in such proceedings. 19. Further it is also ordered that the petitioner will also be at liberty to file appropriate application for exemption from personal appearance, till the discharge application is decided by the Sessions court. It is made clear that in the event of the petitioner making such application through the learned counsel, Crl.MC.No.3214 OF 2016 12 the same may be duly considered by the said court taking note of the fact that the petitioner is working abroad. The petitioner has already secured bail in this case and therefore, going by the dictum laid down by the Constitution Bench of this Court in _**Sushila Aggarwal v. State ( NCT of Delhi)**_ [(2020) (5) SCC pg.1], the bail order so granted will have its validity period until the finalisation of the trial, etc. 20. The Registry will forward copies of this order to the Judicial First Class Magistrate Court-II, Pathanamthitta, who is dealing with C.P. No.23/2015 as well as the Sessions Court, Pathanamthitta, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//27122020 Crl.MC.No.3214 OF 2016 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-I COPY OF THE FIRST INFORMATION REPORT AND FIRST INFORMATION STATEMENT IN CRIME NO.868/2011 OF KONNI POLICE STATION** **ANNEXURE-II CERTIFICED COPY OF THE FINAL REPORT IN CRIME NO.868/2011 OF KONNI POLICE STATION** **ANNEXURE-III CERTIFIED COPY OF THE DYING DECLARATION OF DECEASED DIVYA** ## **RESPONDENTS' EXHIBITS: NIL**