Sajeevan N., Rajeevan, Kaushalya and Priyesh N. v. State of Kerala and Pushpavalli

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** **Crl.MC.No.2962 OF 2015** **AGAINST THE ORDER/JUDGMENT IN MC 126/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THALASSERY** **CRIME NO.4/2014 OF Dharmadam Police Station , Kannur** ## **PETITIONERS/ACCUSED 1 TO 4** |**1**|**SAJEEVAN N.**| |---|---| ||**AGED 46 YEARS**| ||**S/O, A HUTHAN, PUTHAN VAYAL HOUSE,**| ||**MELOOR PO, DHARMADOM AMSOM DESOM,**| ||**KANNUR DISTRICT**| |**2**|**RAJEEVAN**| ||**AGED 41 YEARS**| ||**S/O.ACHUTHAN, PUTHAN VAYAL HOUSE,**| ||**MELOOR PO, DHARMADOM AMSOM DESOM,**| ||**KANNUR DISTRICT**| |**3**|**KAUSALYA**| ||**AGED 71 YEARS**| ||**W/O. ACHUTHAN, PUTHAN VAYAL HOUSE,**| ||**MELOOR PO, DHARMADOM AMSOM DESOM,**| ||**KANNUR DISTRICT**| |**4**|**PRIYESH N**| ||**S/O. ACHUTHAN, PUTHAN VAYAL HOUSE,**| ||**MELOOR PO, DHARMADOM AMSOM DESOM,**| ||**KANNUR DISTRICT. [DELETED]**| ||**[NAME OF THE 4TH PETITIONER IS DELETED AS PER ORDER**| ||**DATED 09/12/2015 IN CRL.MA.NO.11419/2015 IN**| ||**CRL.MC.2962/2015].**| ||**BY ADVS.**| ||**SRI.C.P.PEETHAMBARAN**| ||**SMT.MINI.V.A.**| 2 Crl.MC.No.2962 OF 2015 ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM**| |**2**|**PUSHPAVALLI,**| ||**AGED 40 YEARS**| ||**W/O. LATE PRADEEPAN,**| ||**KARIYAMKANDI HOUSE,**| ||**PALAYAD P.O, DHARMADOM AMSOM,**| ||**KANNUR DISTRICT.**| ||**R2 BY ADV. SRI.K.MOHANAKANNAN**| ||**BY ADV. SMT.A.R.PRAVITHA**| ||**BY ADV. SRI.C.M.VIJESH BABU**| ||**R1 SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 Crl.MC.No.2962 OF 2015 ## **ALEXANDER THOMAS, J. ================================** ## Crl.M.C.No.2962 of 2015 =============================== Dated this the 21[st] day of December, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case filed under Section 482 of Cr.PC as amended are as follows:- “….......... to quash the entire proceedings in C.C.No.3977/2015 on the files of Judicial First Class Magistrate Court, Thalassery pursuant to Annexure A6 Final Report, in the interest of justice. 2. Heard Sri.C.P.Peethambaran , learned counsel appearing for the petitioners, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1 (State of Kerala) and Sri. K.Mohana Kannan appearing for R2. 3. The petitioners herein have been arrayed as accused Nos. 1 to 3 among the 4 accused originally arrayed in the impugned Annexure A1 FIR in Crime No.4/2014 of Dharmadom Police Station, which has been registered on o2.01.2014 for offences punishable under Sections 415, 420, 498(A), r/w 34 of the IPC pursuant to Annexure A1 private criminal complaint dated 24.12.2013, in which 4 Crl.MC.No.2962 OF 2015 the Judicial First Class Magistrate Court, Thalassery has directed the police to register a crime in connected with the investigation into the allegations raised therein. Thereafter the police completed the investigation and has filed the impugned AnnexureA6 Final Report/Charge Sheet on 28.07.2015, this has now led to the pendecy of Calendar Case C.C. No.3977/2015 on the file of Judicial First Class Magistrate Court, Thalassery, Kannur District, in the abovesaid Crime No.4/2014 of Dharmadom Police Station, in which original accused No.4 has been deleted from the accused array and original accused Nos. 1 to 3 had been arrayed as the 3 accused therein for the offences punishable under Sections 498(A) r/w Section 34 of the IPC. 4. The 2[nd] respondent lady defacto complainant is the wife of the 1[st] petitioner (A1). Further that 2[nd] and 3[rd] petitioners (A2 and A3) are the brother and mother respectively of the 1[st] petitioner (A1). The brief of the prosecution case is that, the consent of the lady defacto complainant for marriage with the 1[st] petitioner was obtained on the basis of fraud inasmuch as the vital fact that the 1[st] petitioner (A1) was suffering from mental illness was suppressed and further that after the marriage of the abovesaid spouses the accused persons have 5 Crl.MC.No.2962 OF 2015 misappropriated the defacto comaplainant's gold ornaments and have harrassed her physically and mentally and that therefore they have committed the aforesaid offences. 5. The main contention urged by the petitioners is that, the abovesaid allegations are false and baseless and further that except the allegations of cheating, all the allegations were previously raised by the 2[nd] respondent in other proceedings at Annexure A2 and AnnexureA3, which has been repelled in such proceedings and further that, at the time of initiation of those proceedings the allegations that the consent of the 2[nd] respondent for marriage was obtained on the basis of fraudulent suppression etc. has never been raised and has been raised for the first time only on 24.02.2013, at the time of filing of the impugned private criminal complaint. 6. From a reading of the pleadings in this regard is seen that earlier the 2[nd] respondent, lady defacto complainant has filed Annexure A2 complaint/ petition dated 26.07.2010 before the Inspector of Police, Women Cell, Kannur. The petitioners have stated that the abovesaid allegations are the subject matter of petition enquired by the police officer concerned, who found that the allegations are not tenable and further that the 2[nd] respondent and 6 Crl.MC.No.2962 OF 2015 her family members are also appraised about that by the police authorities and she has not challenged those aspects in the manner known to law. Further that later the 2[nd] respondent has filed an application under the Domestic Violence Act, 2005 (hereinafter referred to as DV Act, 2005) as per AnnexureA3, M.C.No.126/2012 on 21.05.2012. Basic allegations that her gold ornaments have been misappropriated and other allegations regarding cruelty and harassment raised therein. Annexure A4 is the counter affidavit of the respondents therein (petitioners herein) filed by them in M.C.No.126/2012 on 15.07.2012. By Annexure A5 final order dated 28.06.2014, the learned Magistrate has disposed of M.C.No.126/2012, by repelling all the abovesaid allegations. AnnexureA5 order has become final and conclusive and it appears that the 2[nd] respondent has not filed any appeal to challenge Annexure A5 order under Section 29 of the DV Act. 7. A reading of Annexure A2 complaint/petition dated 26.07.2010 filed previously before the police authorities concerned as well as AnnexureA3 application under the DV Act,2005 before the learned Magistrate would make it clear that, the 2[nd] respondent has never raised allegations that her consent for marriage was obtained 7 Crl.MC.No.2962 OF 2015 on the basis of fraudulent submission as aforestated etc. So it is crystal clear that the said allegations regarding the alleged suppression of material facts to obtain her consent for the marriage etc. has been raised for the first time by the 2[nd] respondent by filing Annexure A1 private criminal complaint as later as on 24.02.2013. 8. Further it is also to be born in mind that though allegations of cheating as aforestated has been raised by the 2[nd] respondent in Annexure A1 FIR, but the police after investigation has disbelieved her version and has chosen to delete the offences as per Section 420 and 415 of the IPC and has included only offences as per Section 498A read with 34of the IPC in Annexure A6 Final Report/Charge Sheet. 9. Thus it can be seen that the police authorities themselves have disbelieved her allegations regarding alleged cheating for securing her consent for marriage, after conclusion of the investigation. Thus it can be seen that some of the crucial allegations made by the 2[nd] respondent has been found to be not trust worthy and believable even by the police authorities and therefore, there is force at the submissions made by the counsel for the petitioner that the other allegations raised by the 2[nd] respondent should also be 8 Crl.MC.No.2962 OF 2015 viewed in the equal suspicion etc. However, the fact of the matter is that most of the other allegations now raised in Annexure A1 has been subject matter of either Annexure A2 complaint/petition dated 26.07.2010 filed previously by the 2[nd] respondent before the police officer concerned, who found that those allegations are not tenable. The 2[nd] respondent thereafter has not challenged the said stand of the police authorities by filing any petition before the superior officer like the District Police Chief etc. So also the allegations regarding cruelty and harassment and misappropriation of gold ornaments etc. raised in AnnexureA3 petition has also been repelled by the learned Magistrate as can be seen from AnnexureA5 order dated 28.06.2014. The 2[nd] respondent has not chosen to challenge AnnexureA5 order, though efficacious statutory remedy by way of appeal in terms of Section 29 of the DV Act,2005 was available. Therefore, in the light of these aspects, it can be seen that the abovesaid allegations earlier dispelled as per Annexure A2 and A5 are sought to be rehashed or resurrected by the 2[nd] respondent by initiating Annexure A1 FIR, which has now culminated in Annexure A6 Final Report/Charge Sheet and the calendar case arising therefrom. 10. In short, petitioner has made out a strong probable case 9 Crl.MC.No.2962 OF 2015 that the abovesaid allegations have been made by the 2[nd] respondent only for extraneous and ulterior considerations and that the incidents alleged in the impugned proceedings may not happen in the manner as suggested by the prosecution but in some other manner. 11. It has been held by the Apex Court in the case **Shakson Belthissor v. State of Kerala & another** reported in (2009) 14 SCC 466 that where a complaint is found to be vexatious or frivolous or oppressive, the power under Sec.482 Cr.P.C could befittingly exercised to quash such impugned criminal proceedings. In the case **State of Orissa through Kumar Raghvendra Singh & others v. Ganesh Chandra Jew** reported in (2004) 8 SCC 40, the Apex Court has held that the impugned criminal proceedings can be quashed where the complaint involves malafides. In the case **Lambodaran Nair v. State of Kerala** reported in 2003 (1) KLT SN 115 Case No.83 (SC) it has been held by the Apex Court that the power under Sec.482 Cr.PC can be exercised where criminal proceedings were manifestly attended with malafides or to wreck personal vengeance. In the case **Om Prakash v. State of Jharkhand** reported in (2012) 12 SCC 72, the Supreme Court has categorically held that if it appears to the trained judicial mind that 10 Crl.MC.No.2962 OF 2015 continuance of a prosecution will lead to abuse of process of law or miscarriage of justice, the power under Sec.482 of Cr.P.C. must be exercised and the proceedings must be quashed. 12. Hence going by the totality of the facts and circumstances of the case, this Court is of the considered view that the continuance of the impugned criminal proceedings could be an abuseof the processs of court and would require interdiction at the hands of this Court in exercise of the inherent extraordinary powers of this Court saved and preserved in terms of Section 482 Cr.P.C 13. In the light of these aspects it is ordered in the interest of justice that the impugned Annexure A6 Final Report/Charge Sheet filed in impugned Annexure A1 Crime No.4/2014 of Dharmadom police station, which has now led to the pendency of calendar case in C.C. No.3977/2015 on the file of the Judicial First Class Magistrate Court, Thalassery, as against the petitioners/accused and all other proceedings .emanating therefrom as against the petitioner/accused will stand quashed and set aside. 14. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class Magistrate Court, Thalassery, who is dealing with 11 Crl.MC.No.2962 OF 2015 C.C.No.3977/2015 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **hmh** 12 Crl.MC.No.2962 OF 2015 ## **APPENDIX** ## **PETITIONERS EXHIBITS:** ## **ANNEXURE A1** **CERTIFIED COPY OF THE FIR ALONG WITH THE COMAPLAINT IN CRIME NO.4/2014 OF DHARMADOM POLICE,KANNUR AND ITS REPORT** **ANNEXURE A2 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDNET BEFOR ETHE SUB INSPECTOR OF POLICE WOMEN CELL, KANNUR AND ITS REPORT** - **ANNEXURE A3 TRUE COPY OF MC NO.126/2012 FILED BY THE 2ND RESPONDNET BEFORE THE JUDICIAL FIRST CLASS MAGISTRARE COURT, THALASSERY** **ANNEXURE A4 TRUE COPY OF THE COUNTER SUBMITTED BY THE PETITIONERS AND OTHERS IN MC NO. 126/2012** - **ANNEXURE A5** - **TRUE COPY OF THE ORDER DATED 28.6.2014 IN MC NO.126/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THALASSERY** **ANNEXURE A6** **CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.3977/2015 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THALASSERY.** **RESPONDENTS' EXHIBITS: NIL**