Saji @ Sajith v. State of Kerala and Rajani

``` CRL.MC NO. 5917 OF 2022 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 ``` ## **`CRL.MC NO. 5917 OF 2022`** ``` CRIME NO.187/2003 OF CHEVAYUR POLICE STATION ``` ## **`PETITIONER:`** ``` SAJI @ SAJITH AGED 49 YEARS LEELA NIVAS, KAKODI AMSOM, KIZHAKKU MURI, KOZHIKODE, PIN - 673611 BY ADV S.K.AJAY KUMAR ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2RAJANI, D/O.CHANDU, KAPPIKUNNUMEL HOUSE, KINAPURAM DESOM, KOYILANDI TALUK, PIN - 673305 ``` ``` R1 BY SRI.SANGEETHA RAJ-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5917 OF 2022 ``` ``` 2 ``` K.BABU, J . -------------------------------------- ## Crl.M.C.No.5917 of 2022 --------------------------------------- Dated this the 8th day of June, 2023 ## O R D E R The prayer in this Crl.M.C is to quash Annexure A3 Final Report in Crime No.187/2003 of Chevayur Police Station, which is pending as L.P. No.34/2011 (C.C.No.529/2011) before the Judicial First Class Magistrate Court I, Kozhikode. 2. The petitioner is accused No.5 in this case. Prosecution was initiated against the petitioner and the other accused based on a complaint filed by respondent No.2 alleging the offences punishable under Sections 406 and 498-A r/w Section 149 of IPC. 3. Accused No.1, the brother of the petitioner married the defacto complainant on 19.5.2002. Their relationship later strained. According to the prosecution, the petitioner and other accused ill-treated respondent No.2/defato complainant by demanding dowry. 4. The learned counsel for the petitioner submitted that there are only general allegations against the present petitioner. The prosecution ``` CRL.MC NO. 5917 OF 2022 ``` ``` 3 ``` failed to produce any material to attract the offences alleged against the petitioner. 5. The learned counsel further submitted that accused No.4 in this case faced trial before the Court below and was acquitted of the offences alleged for want of evidence. The learned counsel relied on Annexure A5 judgment in support of his contention. 6. In Annexure A1 complaint, respondent No.2, the defacto complainant alleged the following: "തുടർനനകുറച്ചുദിവസങ്ങൾകഴിഞ്ഞപ്പോൾതന്നെ 1-)൦പ്രതി ദിനംപ്രതി മദ്യപിച്ചു വീട്ടിൽ വരികയും അനായക്കാരിയയോട് "എടീ നീ നിന്റെ വീട്ടിൽ പോയി നിന്റെ ഓഹരി സ്ഥലം വിറ പണം . കൊണ്ടുകകൊടുക്കണമെന്നു പറഞ്ഞു നിരന്തരം മർദിക്കാൻ തുടങ്ങി കൂടാതെ 3, 4, 5 പ്രതികൾ അന്യായക്കാരിയയോട് "നിനക സൗന ദര്യമില്ലെന്നുംനിനകകനിന്റെ വീട്ടുകാർതന്നആഭരണംവളരെ , നിനക കുറവാണെ ന്നും മര്യാദക ഇവിടെ കഴിയണമെങ്കിൽ നിന്റെ പോയി പണം വരണം വീട്ടിൽ കുറച്ചു കൂടി വാങ്ങി എന്നും മറ്റും പറഞ്ഞുദിനംപ്രതിചീത്തപറയാനുംഉപദ്രവിക്കാനുംതുടങ്ങി." 7. It is alleged that accused Nos.3, 4 and 5 continuously ill-treated respondent No.2 demanding money and gold ornaments. 8. Going by the materials produced by the prosecution as against the petitioner, the allegations are only general. There were no specific allegations in the FIR and in the final report as to the specific role of the ``` CRL.MC NO. 5917 OF 2022 ``` ``` 4 ``` petitioner. 9. The learned counsel for the petitioner/accused No.5, relying on Kahkashan Kausar v. State of Bihar [(2022) 6 SCC 599], contended that the general omnibus allegations cannot be used to implicate relatives of the husband in matrimonial disputes. In Kahkashan Kausar (supra), the Apex Court observed thus:- “16. Recently, in K. Subba Rao v. The State of Telangana (2018) 14 SCC 452, it was also observed that: “6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.” 17. The above-mentioned decisions clearly demonstrate that this Court has at numerous instances expressed concern over the misuse of Section 498A Indian Penal Code and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the Accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this Court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.” 10. As per Annexure A5 judgment, the trial court acquitted accused No.4 holding that the prosecution failed to establish the allegations levelled ``` CRL.MC NO. 5917 OF 2022 ``` ``` 5 ``` against him. 11. Even if the face value of the reports in the FIS and the subsequent statements recorded by the police, has been taken up and accepted in their entirety, they do not prima facie constitute any offences punishable under Sections 406 and 498-A r/w Section 149 of IPC. 12. On the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C., the Apex Court in State of Haryana and Others v. Bhajan Lal and Others (1992 Supp. (1) 335) held thus:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. ``` CRL.MC NO. 5917 OF 2022 ``` ``` 6 ``` (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 13. The present case is fully covered by categories 1 and 3 as enumerated in Bhajan Lal case (supra). I am of the view that, in the ``` CRL.MC NO. 5917 OF 2022 ``` ``` 7 ``` present facts and circumstances, the criminal proceedings in C.C.No.529/2011, now pending as L.P.No.34/2011, on the file of the Judicial First Class Magistrate Court I, Kozhikode against the petitioner are liable to be quashed. In the result, the Crl.M.C is allowed. All further proceedings in C.C.No.529/2011, now pending as L.P.No.34/2011, on the file of the Judicial First Class Magistrate Court I, Kozhikode as against the petitioner stand hereby quashed. Sd/- K. BABU JUDGE ab ``` CRL.MC NO. 5917 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 5917/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1THE TRUE COPY OF THE COMPLAINT DATED 25.08.2003 Annexure A2TRUE COPY OF THE FIR DATED 29.08.2003 IN CRIME NO 187/2003 OF CHEVAYUR POLICE STATION Annexure A3TRUE COPY OF THE FINAL REPORT IN CRIME NO.187/2003 OF CHEVAYUR POLICE STATION, KOZHIKODE Annexure A4THE TRUE COPY OF THE JUDGMENT IN C.C 308/2005 DATED 23.12.2008 OF THE JFCM -I, KOZHIKODE Annexure A5THE TRUE COPY OF THE JUDGMENT IN C.C NO. 529/2011 DATED 20.01.2014 OF JFCM- I, KOZHIKODE ``` RESPONDENTS ANNEXURES: NIL