Sakeena v. State of Kerala & Naheeda Khalid

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942 CRL.MC.NO.2325 OF 2018 CC 321/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI CRIME NO.419/2017 OF PAYYOLI POLICE STATION, KOZHIKODE** ## **PETITIONER/ACCUSED NO.2:** **SAKEENA, AGED 60 YEARS, W/O.LATE MOIDEEN KOYA, MANIKKOTHVETTIL HOUSE, PALLIKKARA, PAYYOLI, KOZHIKODE RURAL, KERALA-673522.** **BY ADVS. SRI.M.R.VENUGOPAL, SMT.DHANYA P.ASHOKAN** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 2 NAHEEDA KHALID, AGED 27, D/O.KHALID, VALLIL HOUSE, PALLIKKARA, PAYYOLY, KOZHIKODE, PIN-673522.** **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR ADV. SRI.R.BINDU SASTHAMANGALAM** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------Crl.M.C. No. 2325 of 2018 --------------------------------------Dated this the 4[th] day of December, 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: _“.........allow this Crl.M.C. quashing Annexure-I FIR and II Final Report in Crime No.419/2017 of Payyoli Police Station, Kozhikode and in C.C. No. 321/2017 on the file of Judicial First Class Magistrate Court, Payyoli.”_ 2. Heard Sri.M.R.Venugopal, learned counsel appearing for the petitioner (A-2), Sri.Santhosh Peter, learned Public Prosecutor appearing for R-1 (State) and Sri.R.Bindu Sasthamangalam, learned counsel appearing for R-2 (lady defacto complainant). 3. The petitioner herein has been arrayed as accused No.2 among the two accused in the instant Anx.I FIR in Crime No.419/2017 of Payyoli Police Station, which has been registered for offences punishable under Secs.498A, 406 & 34 of the IPC, on the basis of the FIS given by the 2[nd] respondent lady defacto complainant on 16.6.2017 at about 5.30 pm in respect of the alleged incidents which happened for the period from 15.6.2008 to 16.6.2017. The police after investigation Crl.M.C. No. 2325/2018 ..3.. has filed the instant impugned Anx.II final report/charge sheet which has now led to the pendency of C.C.No.321/2017 on the file of the JFCM, Payyoli. It is this proceedings at Anx.II which has led to the pendency of C.C.No.321/2017 on the file of the JFCM, Payyoli, that is under challenge in this petition. 4. The 2[nd] respondent is the wife of A-1. The petitioner (A-2) is the mother of A-1.The allegations are to the effect that, after the marriage of abovesaid spouses, the accused persons have treated the 2[nd] respondent lady defacto complainant with cruelty and harassment, and has committed the abovesaid offences. The only allegation raised against the petitioner (who is the mother of A-1) are as follows: (as given in bottom portion of page 1 & latter half of page 2 of Anx.I FIS ) " …....................ഭർതത്താവവിനന്റെ ഉമ്മയയും സഹഹത്താദരവിയയും _"_ നവിനക്കു ഹവനറെ നല _,_ നപെണവിനന കവിട്ടുമത്തായവിരുനവിഹല സസ്വതത പെണവുനമത്താനക്കെയള നപെണവിനന കലലത്താണയും കഴവിചത്താൽ മതവിയത്തായവിരുനവിനല _"_ എനനലത്തായും പെറെഞ്ഞു ഭർതത്താവവിനന കൂടുതൽ പ്രഹകത്താപെവിപവിക്കുമത്തായവിരുന _..................................................................................................................... ..................................................................................................................... ............................................................................................................... …........................._ 2016 ജൂലല 16-)0 തതീയതവി ഉമ്മ നതീ നവിനന്റെ വതീടവിൽ എനന നവിഹനത്താ എനയും പെറെഞ്ഞു വതീടവിൽ നവിനയും ഇറെക്കെവി വവിട്ടു.” 5. It is clearly admitted by the 2[nd] respondent in the top portion of Page 2 of Anx.I FIS that, Crl.M.C. No. 2325/2018 ..4.. "…..............ഭർതത്താവവിനന്റെ ഉമ്മ മവിക്കെവത്താറയും സഹഹത്താദരവിയനട വതീടവിലത്തായവിരുന.” 6. Thus it can be seen that, it is the admitted case of prosecution that the petitioner, who is the mother of A-1, was most of time in her own daughter's house and thus away from the house where the 2[nd] respondent and her husband (A-1) were living. The other allegations raised against A-2 is that, she and her daughter used to say that the 2[nd] respondent lacks beauty and that A-1 could have got a better wife who is having more financial resources. In the instant case, no allegation of demand of dowry are made as against the petitioner, as understood in Clause (b) of Explanation appended to Sec.498A. The only allegations are regarding cruelty Further it is alleged that, the petitioner had asked her to go out of the house. The abovesaid allegations will not constitute the essential ingredients of cruelty as understood in Sec. ....... Hence the ingredients would satisfy the requirements of Clause (a) of Explanation appended to Sec.498A. 7. Sec.498A of the IPC reads as follows: _“_ _**498A. Husband or relative of husband of a woman subjecting her to cruelty.** —Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine._ _Explanation.—For the purpose of this section, “cruelty” means—_ Crl.M.C. No. 2325/2018 ..5.. - _(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or_ - _(b) harassment of the woman where such harassment is_ - _with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her_ - _or any person related to her to meet such demand.”_ 8. The law in this regard has been dealt with in detail in a catena of rulings of the Apex Court and various High Courts as can be seen from the cases as in _**Girdhar Shankar Tawade v. State of Maharashtra [(2002) 5 SCC 177]**_ , _**Gurnaib Singh v. State of Punjab [(2013) 7 SCC 108]**_ , _**Pinakin Mahipatray Rawal v. State of Gujarat [(2013) 10 SCC 48]**_ , _**Ghusabhai Raisangbhai Chorasiya v. State of Gujarat**_ **[(2015) 11 SCC 753]** . 9. In _**Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC 177**_ , it has been held in para No.3 thereof that, _“3.The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent_ Crl.M.C. No. 2325/2018 ..6.. _expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498-A.”_ ## 10. In _**Pinakin Mahipatray Rawal v. State of Gujarat (2013) 10 SCC 48**_ , it has been held in para Nos. 19 & 23 thereof that, _“19. “Marital relationship” means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on. Extramarital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the Explanation to Section 498-A and that A-1 had abetted the wife to commit suicide. We have to examine whether the relationship between A-1 and A-2 amounted to mental harassment and cruelty._ _20............................xxxx.................xxxx....................................._ _21............................xxxx.................xxxx......................................_ _22............................xxxx.................xxxx....................................._ _23.We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. We, on facts, found that the alleged extramarital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.”_ Crl.M.C. No. 2325/2018 ..7.. 11. Hence this Court is of the considered view that, the vital ingredients of the offence as per Sec.498A are not made out as against the petitioner herein (A-2). Further, the petitioner has got a case that, earlier she had given a complaint to the police as against the 2[nd] respondent and her father that they had assaulted the petitioner herein which resulted in registration of Anx.III FIR for offences as per 148, 323, 294, 506 & 34 of the IPC, in which the police after investigation has filed Anx.IV final report/charge sheet which has led to the pendency of calender case C.C. No 524/2016 of JFCM, Payyoli. According to the petitioner, Anxs.III & IV have been set in motion as early as on 21.7.2016, whereas Anx.I has been set in motion by the 2[nd] respondent only later on 16.6.2017 which is almost after a year, only as a counter blast to Anx.III etc. 12. Taking note of the facts and circumstances in this case this Court is of the considered view that, the continuance of the present impugned criminal proceedings at Anxs.I & II is an abuse of the process of Court, and would deserve interdiction at the hands of this Court in exercise of the inherent powers conferred under Sec.482 of the Cr.P.C. In that view of the matter it is Crl.M.C. No. 2325/2018 ..8.. ordered that the impugned Anx.II final report/charge sheet filed in Crime No.419/2017 which has led to the pendency of calender case C.C.No.321/2017 on the file of the JFCM, Payyoli, to the limited extend it is directed as against the petitioner herein (A-2) and all consequential proceedings arising therefrom to the limited extend it is directed as against the petitioner herein (A-2) will stand quashed and set aside. The impugned proceedings at Anxs.I & II to the extend it is directed as against A-1 may proceed in accordance with law untrammeled and uninfluenced in any manner by the observations and findings made by this Court herein above. 13. The petitioner will produce a certified copy of this order before the Investigating Officer concerned as well as before the JFCM, Payyoli, who is dealing with C.C.No.321/2017 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 2325/2018 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I** **CERTIFIED COPY OF THE F.I.R. AND F.I. STATEMENT DATED 16-06-2017 IN CRIME NO.419/2017 ON THE FILE OF PAYYOLI POLICE STATION.** ## **ANNEXURE II** **CERTIFIED COPY OF THE FINAL REPORT DATED 11-12-2017 ALONG WITH WITNESS STATEMENTS IN CRIME NO.419/2017.** ## **ANNEXURE III** **TRUE COPY OF FIR AND FIS ALONG WITH THE COMPLAINT DATED 9-07-2016 FILED BEFORE THE DISTRICT SUPERINTENDENT OF POLICE, KOZHIKODE IN CRIME NO.524/2016 IN PAYYOLI POLICE STATION.** **ANNEXURE IV TRUE COPY OF FINAL REPORT DATED 09-09-2016 IN CRIME NO.524/2016 OF PAYYOLI POLICE STATION.**