SANTHA & SANGEETHA C.V. v. STATE OF KERALA & SHANTHI

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938 Crl.MC.No. 1846 of 2016 () --------------------------AGAINST THE ORDER/JUDGMENT IN CC 138/2016 of J.M.F.C.,KOLENCHERRY DATED CRIME NO. 989/2015 OF PUTHENCRUZ POLICE STATION , ERNAKULAM PETITIONER(S)/PETITIONERS: ------------------------- 1. SANTHA, AGED 61 W/O.C.K.VELAYUDHAN, CHINGAMCHIRA HOUSE, PERINGOLE KARA, KOLENCHERY, KUNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682311. 2. SANGEETHA.C.V, D/O.VELAYUDHAN, CHINGAMCHIRA HOUSE, PERINGOLE KARA, KOLENCHERY, KUNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-682311. BY ADV. SRI.BENNY VARGHESE RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2. SHANTHI, D/O.THANKAPPAN, AGED 30 YEARS C/O.N.THANKAPPAN, AIKKARAKANDATHIL HOUSE, PAMBAKUDA KARA,ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK,PIN-686667, NOW RESIDING AT FLAT NO.45, BUILDING NO.18,POONE VIHARASVADI, MAHARASHTRA STATE,PUNE CITY, MAHARASHTRA,INDIA. R2 BY ADV. SRI.A.T.ANILKUMAR R BY PUBLIC PROSECUTOR, SMT. M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CONTD..... :2: Crl.MC.No. 1846 of 2016 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE A1 THE CERTIFIED COPY OF THE FIRST INFORMATION REPORT FILED IN CRIME NO.989/15 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,KOLENCHERY ANNEXUE-A2 THE CERTIFIED COPY OF THE FINAL REPORT FILED IN C.C.138/16 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,KOLENCHERRY ANNEXURE-A3 THE CERTIFIED COPY FO THE STATEMENT ALLEGEDLY GIVEN BY THE 2ND RESPONDENT (CW 1),THE DEFACTO COMPLAINANT ANNEXURE-A4 THE CERTIFIED COPY OF THE STATEMENT ALLEGEDLY GIVEN BY THE CW .2 ANNEXURE-A5 THE CERTIFIED COPY OF THE STATEMENT ALLEGEDLY GIVEN BY THE CW 3 ANNEXURE-A6 THE TRUE COPY OF THE SALE DEED EXECUTED IN FAVOR OF THE 2ND PETITIONER ANNEXURE-A7 THE TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER ANNEXURE-A8 THE TRUE COPY OF THE RECEIPT ISSUED TO THE 1ST ACCUSED ACKNOWLEDGING THE GOLD DATED 14.8.2014 ANNEXURE-A9 THE TRUE COPY OF THE RECEIPT ISSUED TO THE 1ST ACCUSED ACKNOWLEDGING THE RECEIPT OF ORIGINAL CERTIFICATES AND OTHER ARTICLES BY THE FATHER OF THE 2ND RESPONDENT DATED 22.9.2014 ANNEXURE-A10 THE TRUE COPY OF THE WOUND CERTIFICATE SHOWING THE TREATMENT OF THE 2ND ACCUSED ANNEXURE-A11 THE TRUE COPY OF THE CERTIFICATE SHOWING THE TRANSFER OF THE 2ND PETITIONER FROM BANGLORE TO KOCHI DATED 14.8.2014 ANNEXURE-A12 THE TRUE COPY OF THE CERTIFICATE SHOWING THE TRANSFER OF THE 2ND PETITIONER FROM CHENNAI TO BANGALORE DATED 20.5.2010. RESPONDENT(S)' EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **RAJA VIJAYARAGHAVAN V., J.** ------------------------------------------ ## **Crl.M.C. No. 1846 of 2016** -----------------------------------------Dated this the 24[th] day of January, 2017 ## **O R D E R** **~~~~~~~~** - 1.The 1[st] petitioner is the mother of the 2[nd] petitioner . They have been arrayed as the accused Nos. 3 and 4 in C.C. No. 138 of 2016 on the file of the Judicial First Class Magistrate Court, Kolenchery. The accused Nos. 1 and 2 in the aforesaid case are the son and husband of the 1[st] petitioner. - 2.The prosecution allegation is that the 1[st] accused had married the 2[nd] respondent on 25.10.09 and they resided together at the matrimonial home as husband and wife . It is the case of the 2[nd] respondent that she was subjected to cruelty and harassment on account of her failure to comply with the unlawful demands of the accused for money and gold. On the basis of a complaint filed before the Vanitha Crl.M.C. No. 1846 of 2016 2 Cell, a crime was registered. Later, investigation was conducted and final report was laid before the jurisdictional Court for offence under section 498 (A) of the IPC. - 3.Heard the learned counsel appearing for the petitioner , the party respondent and also the learned public prosecutor. - 4.The learned counsel appearing for the petitioner took this Court through the statement of the de facto complainant as well as her parents and it is submitted that the allegations raised against the petitioners herein, who are the mother and sister of the 1[st] accused are vague. According to the learned counsel, there are ample materials to conclude that false allegations have been raised by the 2[nd] respondent for the purpose of roping in the petitioners. It is argued that the conclusion arrived at Crl.M.C. No. 1846 of 2016 3 by the Police regarding the involvement of the petitioner is without conducting a proper investigation in the matter. It is further argued that the petitioners had no occasion to stay with the 2[nd] respondent and her husband at any point of time and hence the allegation of harassment and cruelty is false and concocted. Referring to the decision of the Apex Court in **Preeti Gupta and Another v. State of Jharkand and Another** (2010 (7) SCC 667), it is submitted that there is a growing tendency of implicating the near relatives of the husband and this is one such case. It is finally urged that this is a fit case for invocation of powers under section 482 of the Code to quash the proceedings . - 5.The learned Counsel appearing for the respondent countered the submissions and submitted that prima facie allegations have been levelled in the complaint and also in Crl.M.C. No. 1846 of 2016 4 the final report against the petitioners. It is further argued that this Court will not be justified in meticulously going through the 161 statements of the witnesses and also the various materials produced before this Court to decide whether the powers under section 482 is to be invoked . - 6.The learned public prosecutor also placed a catena of decisions to remind this court of the contours of its power under section 482 of the Code. It is submitted that the contentions now raised are in the realm of appreciation of evidence . - 7.It is by now settled that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it , the accusation could be sustained. That is the function of the trial Court. Section 482 of the Code is Crl.M.C. No. 1846 of 2016 5 not an instrument handed over to an accused to shortcircuit a prosecution and brings about its closure without a full-fledged enquiry. Though High Court may exercise its power to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power has be exercised sparingly and with circumspection. The interference must be on sound principles and the inherent power cannot be exercised to stifle a legitimate prosecution. - 8.After going through the final report and the accompanying materials, I am of the view that this is not a fit case in which, the powers under section 482 can be exercised. I refrain from passing opinion on the merits of the allegations at this stage lest it affect the case of either the prosecution or the accused. - 9.It is submitted that the charge has not been framed till Crl.M.C. No. 1846 of 2016 6 date . Section 239 of the Code specifically provides that at the stage of framing of charge, it is obligatory upon the learned Magistrate to hear the prosecution and the accused and if the learned Magistrate considers the Charge to be groundless, he is empowered to discharge the accused after recording his reasons. When alternate and comprehensive remedies are available for the petitioner under the Code, this Court will not be justified in sifting and weighing the materials in a petition filed under Section 482 of the Code. - 10.I am of the view that the petitioners are to approach the learned Magistrate and advance their contentions at the appropriate state. I find no good reason to interfere under Section 482 Cr.P.C. However, in view of the fervent submissions advanced by the learned Counsel, the petitioner is permitted to seek for discharge in absentia. If Crl.M.C. No. 1846 of 2016 7 any such application is filed , the learned Magistrate shall consider and pass appropriate orders on its merits untrammeled by any of the observations made in this order. The petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** SKS //TRUE COPY// P.A. TO JUDGE