Shafeer and Others v. Umairath and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 20TH DAY OF MARCH 2014/29TH PHALGUNA, 1935** ## **Crl.MC.No. 3508 of 2012** **----------------------------------** ## **AGAINST THE ORDER IN CC 583/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAKADA** **---------** ## **PETITIONER(S)/ACCUSED NO.1 TO 5:** **------------------------------------------------------** **1. SHAFEER, AGED 37 YEARS, S/O.MEERA SAHIB, AGED 37, FATIMA MASJID LANE, KALLAMBALAM, BALARAMAPURAM POST, THIRUVANANTHAPURAMPIN 695 501 (A1)** **2. NUSAIFA, D/O.ASMA BEEVI, AGED 52, OF -DO- -DO- (A2)** **3. SAJEER, S/O.MEERA SAHIB, AGED 31, OF -DO- -DO- (A3)** **4. SHEMI, D/O.NUSAIFA, AGED 26, OF -DO- DO- (A4)** **5. MEERA SAHIB, S/O.PEERU MOHAMMED, AGED 63, OF -DO- -DO- (A5)** **BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** **1. UMAIRATH,** **D/O.SHABABANATH, AGE 26, SUDHIR MANZIL, KOTOORCHAVADAMOODU, KOTOOR POST, MANOORKARA VILLAGE, THIRUVANANTHAPURAM PIN - 695 574.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP R2 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 3508 of 2012** ## **----------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **-------------------------------------** ## **ANNEXURE-A:CERTIFIED COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONERS.** **ANNEXURE-B:TRUE COPY OF THE FINAL REPORT IN C.C.NO.1204/07 ON THE FILE OF THE JUDL.1ST CLASS MAGISTRATE, KATTAKKADA, THIRUVANANTHAPURAM.** ## **RESPONDENTS' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.3508 of 2012 ---------------------------------------------Dated this the 20[th] day of March, 2014 ## **ORDER** This is a petition filed u/s.482 Cr.P.C. to quash Annexure-A complaint and all proceedings in C.C.No.583/2011 on the file of Judicial First Class Magistrate Court, Kattakkada for offence punishable u/s.498A r/w 34 IPC by invoking the inherent jurisdiction. 2. The petitioners are accused 1 to 3 and 5 in the above case, which was filed by the 1[st] respondent alleging the aforesaid offence. The petitioners contended that for the same incident, Annexure-B final report is pending before the judicial First Class magistrate Court, Kattakkada and cognizance was taken for offence punishable u/s.498A r/w 34 IPC against the petitioners 1 to 3 and 5. Annexure-B was filed on the basis of Crime N0.180/2006 of Neyyardam Crl.M.C.No.3508/12 2 Police Station and after investigation, filed Annexure-B against four persons only. The petitioners allege that the cognizance was taken on the same set of facts against them for the 2[nd] time and it will amount to double prosecution and illegal. Hence, this petition to quash Annexure-A by invoking the inherent jurisdiction u/s.482 Cr.P.C. 3. The 1[st] respondent's allegation in Annexure-A complaint married her as per customary rites and thereafter resided together in the matrimonial house. While residing so, the petitioners ill-treated her both physically and mentally. Subsequently, on different occasion, she was sent out from matrimonial house demanding more amount and gold. The 1[st] respondent alleges that the petitioners 2 to 5 brutally assaulted her. In the circumstances, she filed Annexure-A complaint before Judicial First Class Magistrate Court, Kattakkada. Aggrieved by that, the petitioners, who are the accused in Crl.M.C.No.3508/12 3 the above case, approached this Court with this petition. The learned counsel relied decision in _**Kishore Kumar Gyanchandani**_ v. _**G.D. Mehrotra and another**_ [AIR 2002 (2) SC 483]. 4. The learned counsel appearing for the petitioners contended that petitioners 1 to 3 and 5 are accused in C.C.No.1204/2007. Annexure-A was also filed on the basis of same allegation. If both cases are tried by the same Court, the petitioners are bound to face two prosecution for the same incident. The police, after investigation, filed Annexure-B. Therefore, the 1[st] respondent filed Annexure-A complaint, with malafide intention,which amounts to abuse of process of court. 5. The learned counsel appearing for the 1[st] respondent strongly resisted the above contention and contended that the 4[th] accused in the above case was omitted by the investigating officer, while filing Annexure-B final report. Actually her name was included in the original Crl.M.C.No.3508/12 4 complaint, which was forwarded to Neyyardam police for investigation u/s.156(3) Cr.P.C and her overt act was specifically mentioned in that petition also. Ignoring that allegation, the police omitted her name in the report dated 19.8.2006, thereby, the 1[st] respondent was prejudiced by that report on the ground that she was kingpin for making all these problems in the matrimonial house. The learned counsel relied decision of the Supreme Court in _**Hira Lal and ohters**_ v. _**State of U.P. and others**_ [2009 KHC 475] 6. Now the question that arises for consideration is whether the complaint filed by the 1[st] respondent before Judicial First Class Magistrate Court, Kattakkada is sustainable, if so, whether any prima facie case is made out against her? According to Section 482 Cr.P.C., inherent jurisdiction can be invoked only for the specific grounds mentioned therein, i.e., to make such orders necessary to “give effect to any order” under this code or to prevent “abuse of the process” of any court or to secure Crl.M.C.No.3508/12 5 “the ends of justice”. Here, the FIR was registered by Neyyardam Police, after receiving complaint filed before Judicial First Class Magistrate Court, Kattakkada, which was forwarded to Neyyardam police. After detailed investigation, Annexure-B final report was filed before trial Court on 1.10.2006 for offence u/s.498A r/w. 34 IPC. In a petition filed u/s.482 Cr.P.C., it is difficult to analyse the oral and documentary evidence in a case filed by the investigating agency. That is the duty of the learned Magistrate or trial Judge. Here, from the allegations raised in Annexure-A, the Court can ascertain whether prima facie case is made out or not. 7. According to the 1[st] respondent, the incident was occurred in the year 2006. Final report was filed on 1.10.2006 and the Court took cognizance of the offence on the basis of a report u/s.190(b) Cr.P.C. Process was issued u/s.204 Cr.P.C. and the accused mentioned in Annexure-B appeared before the trial Court. The charge Crl.M.C.No.3508/12 6 was framed on 17.8.2010 against four persons. The trial Court examined Pws 1 to 5 and marked their documents. Annexure-D was marked in the trial Court, which is pending there. In the meantime, the 1[st] respondent filed Annexure-A on 30.9.2011. The allegation against the 4[th] accused was that the 4[th] accused called obscene words and pulled her, which was mentioned in paragraph 7 and 8 of the complaint. Based on that allegation, no wound certificate has been produced before Court. 8. In order to attract offence u/s. 498A IPC, the defacto complainant has to prove that her husband or the relative of the husband subjected her to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation says “cruelty” means, 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. Harassment of Crl.M.C.No.3508/12 7 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 is not found in the Annexure-A complaint against the 4[th] petitioner. If that be the position, I am of the opinion that prima facie case is not made out against the 4[th] petitioner. Cognizance was taken against petitioners 1 to 3 and 5 in Annexure-B and process issued and the witnesses were examined and trial is at the fag end. What remains in the proceedings is the examination of the investigating officer alone. If that be the position, the 4[th] petitioner, who is the sister of the 1[st] petitioner is married and residing along with her husband and leading a peaceful marital life. The facts and materials show that prima facie, no materials are produced to proceed against her as per Annexure-A. 9. The learned Public Prosecutor also submitted Crl.M.C.No.3508/12 8 that the investigating officer has conducted the investigation in a fair manner and the trial is at the fag end and need not proceed with Annexure-A complaint. 10. If that be the position, this is a fit case to invoke the inherent jurisdiction u/s.482 Cr.P.C and accordingly, Annexure-A complaint filed before Judicial First Class Magistrate Court, Kattakkada is hereby quashed. However, the observations made in this case shall not have any bearing in the charge pending in Annexure-B. Crl.M.C. is disposed of as above. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.3508/12 9 Crl.M.C.No.3508/12 10