Sanoj and Soudhamini v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938** **Crl.MC.No. 697 of 2016 () --------------------------** **CC 1182/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA. CRIME NO.279/2015 OF KUTHIYATHODE POLICE STATION, ALAPPUZHA.** **.......** ## **PETITIONER(S)/ACCUSED NO.1 :** **---------------------------** **1. SANOJ, S/O.LATE SADASIVAN, AGED 39 YEARS, CHEMBAKASERY HOUSE, THAZHUPPU, PARAYAKADU P.O., CHERTHALA, ALAPPUZHA - 688 540.** **2. SOUDHAMINI, W/O.LATE SADASIVAN, AGED 82 YEARS, CHEMBAKASERY HOUSE, THAZHUPPU, PARAYAKADU P.O., CHERTHALA, ALAPPUZHA NOW RESIDING AT H.NO.12/634 AYYAN MASTER LANE WEST PANAYAPPILLY, KOCHI - 682 002.** **BY ADVS.SRI.C.D.DILEEP SMT.P.K.PAMALA** ## **RESPONDENT(S)/STATE/COMPLAINANT:** **--------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. SINI K.R., W/O.SANOJ C.S. KALATHUMKADAVIL VEEDU, WARD 15, THIRUMALA BHAGOM P.O., CHERTHALA, ALAPPUZHA 688 540.** **R1 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH R2 BY ADV. SMT.S.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **Crl.MC.No. 697 of 2016 () --------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** - **ANNEXURE A1: TRUE COPY OF THE FIR IN CRIME NO.279/2015 OF KUTHIYATHODU POLICE STATION ALONG WITH CMP 1873/2015 OF JFMC -1 CHERTHALA.** - **ANNEXURE A2: CERTIFIED COPY OF THE FINAL REPORT, CC 1182/2015 OF JFMC -1, CHERTHALA.** - **ANNEXURE A3: TRUE COPY OF THE FIR IN CRIME NO.215/2015 OF KUTHIYATHODU POLICE STATION.** - **ANNEXURE A4: THE TRUE COPY OF THE FIRST STATEMENT OF THE 2ND RESPONDENT.** - **ANNEXURE A4(A): TRUE COPY OF THE SUBSEQUENT STATEMENT OF THE 2ND RESPONDENT.** - **ANNEXURE A5: TRUE COPY OF THE STATEMENT GIVEN BY THE 2ND RESPONDENT'S BROTHER.** - **ANNEXURE A5(A): TRUE COPY OF THE SUBSEQUENT STATEMENT GIVEN BY THE RESPONDENT'S BROTHER.** - **ANNEXURE A6: TRUE COPY OF THE DISCHARGE SUMMERY OF THE 2ND PETITIONER ISSUED BY FROM LOURDES HOSPITAL.** - **ANNEXURE A7: TRUE COPY OF THE DISCHARGE SUMMERY FROM GAUTHAM HOSPITAL DATED 17/1/2015 AND 28/2/2015.** - **ANNEXURE A8: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 28/1/2016 OF 2ND PETITIONER.** ## **RESPONDENTS' ANNEXURES : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.697 of 2016** **----------------------------------------Dated this the 17th day of January, 2017** ## **O R D E R** - 1.This petition is filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) seeking to quash the pending criminal proceedings. - 2.The petitioners herein are the accused Nos.1 and 2 in C.C. No.1182 of 2015 on the file of the Judicial Magistrate of First Class-I, Cherthala. The 2[nd] respondent is the de facto complainant. The said case had originated on the strength of a complaint filed by the 2[nd] respondent against the petitioners herein and two others. The learned Magistrate forwarded the matter to the Police based on which Crime No.279 of 2015 of Kuthiyathodu Police Station was registered for the offences punishable under sections 498A, 323, 506(i)(ii) read with 34 of the IPC. Crl.M.C.697/2016 2 The investigation was conducted by the Sub Inspector of Police, Kuthiathode Police Station and Annexure-A2 final report was laid before the learned Magistrate. In the course of investigation it was revealed that accused Nos.2 and 3, who are the brother and brother-in-law respectively of the 1[st] petitioner, were not involved in the offence and they were removed from the array of accused. 3.Prosecution allegation is that the 1[st] petitioner married the 2[nd] respondent herein on 11.2.2012 and thereafter resided at the matrimonial home. A girl was born in the wedlock. The allegation is that the 1[st] petitioner had subjected the 2[nd] respondent to cruelty demanding dowry. In so far as the 2[nd] petitioner is concerned, the allegation is that she had stood as a silent spectator to the acts of the 1[st] petitioner. 4.The learned counsel appearing for the petitioners submits that the allegations raised in Annexure-A1 complaint or in the final report will not make out an offence punishable Crl.M.C.697/2016 3 under section 498A of the IPC. According to the learned counsel, the respondent No.2, the wife of the 1[st] petitioner, has already preferred a petition seeking divorce and also for maintenance, which is pending before the appropriate courts. It is further urged that the criminal proceedings were initiated in order to force the petitioners to yield to her illegal demands. The learned counsel further submits, with specific reference to the 2[nd] petitioner herein, that she is the mother of the 1[st] petitioner and is a lady aged 84 years at present. Referring to the complaint as well as the final report, it is contended that no specific allegations have been raised by the 2[nd] respondent as against the 2[nd] petitioner herein and directing her to undergo the ordeal of trial at this age will result in gross travesty of justice. The learned counsel also relies on the decision of the Apex Court in **State of Karnataka v. Basappa S/o Nagappa** (2000 Crl.LJ 2324) to substantiate his contentions. Crl.M.C.697/2016 4 5.The learned counsel appearing for the 2[nd] respondent countered the submission of the learned counsel and submitted that specific allegations have been raised against the 2[nd] petitioner in the complaint as well as in the final report and that the contentions presently advanced by the 1[st] petitioner will not be a sufficient cause to exercise the extra ordinary powers of this Court under section 482 of the Code to quash the proceedings. According to the learned counsel, prima facie allegations have been raised in the final report and if that be the case, the matter should be relegated to the trial court wherein the case can be decided on the basis of evidence adduced. - 6.I have heard the learned Public Prosecutor as well, who endorse the submission of the learned counsel appearing for the 2[nd] respondent. I have considered the rival submissions and have gone through Annexure-A1 complaint as well as Annexure-A2 final report. The only Crl.M.C.697/2016 5 allegation against the 2[nd] petitioner, who is a lady aged 82 years, is that she was a silent spectator to the acts committed by the 1[st] petitioner. In **Kansraj and Others v. State of Punjab** (AIR 2000 SC 2324), the Apex Court had observed that for the fault of the husband, the in laws or other relatives cannot be held involved in the demand for dowry. Merely because, the 2[nd] petitioner did not interfere with the acts of the 1[st] petitioner is no reason to rope her in a prosecution for the offence under section 498A of the IPC. Cruelty as defined in the Explanation to section 498A of the IPC has a two fold meaning. Under Explanation (a) conduct which is likely to cause injury or danger to life, limb or health, whether mental or physical of the women is required to be established. Under Explanation (b), harassment of the women should be with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security on account of failure by the wife or any person Crl.M.C.697/2016 6 related to her must be established. After having given my anxious consideration to the averments made in the complaint and also the allegations in the final report, I am of the view that the materials are not sufficient to prosecute the 2[nd] petitioner for the offence under section 498A of the IPC. It is evident that the 2[nd] petitioner has been roped in only because of the fact that she happened to be the mother of the husband. In **Preeti Gupta and Another v. State of Jharkand and Another** (2010 (7) SCC 667), the Apex Court had occasion to observe that it is a matter of common experience that most of the complaints under section 498A are filed in the heat of the moment and there is a growing tendency of implicating the near relatives of the husband. - 7.Having regard to the facts and circumstances, I am of the view that in so far as the 2[nd] petitioner is concerned, there are no materials to bring home the offence under section 498A of the IPC. Crl.M.C.697/2016 7 8.In the result, this petition is partly allowed. The proceedings against the 2[nd] petitioner, who is the 2[nd] accused in C.C. No.1182 of 2015 on the file of the Judicial Magistrate of First Class-I, Cherthala are quashed. The 1[st] petitioner shall face the trial. It is made clear that the observations touching the merits of the case made in the course of disposal of this petition are for the limited purpose of considering the contentions raised by the parties. The leaned Magistrate shall dispose of the case against the 1[st] accused untrammelled by any of the observations contained in this order. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps