Sheeja v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **Crl.MC.No.6415 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CC 8067/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS , KODUNGALLUR** **CRIME NO.691/2014 OF Kattoor Police Station , Thrissur** ## **PETITIONER:** ## **SHEEJA** **AGED 43, W/O.SATHYAJITH, PANANGATT HOUSE, PONJANAM, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.N.L.BITTO** ## **RESPONDENTS:** **1 STATE OF KERALA REP. BY THE SUB INSPECTOR OF POLICE, KATTOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 ARCHANA AGED 38, W/O.SHAJU, MANAPPETTY HOUSE, PONJANAM DESOM, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680001. (ADDRESS SHOWN AS IN THE COMPLAINT) 3 SHAJU AGED 46, W/O.GOPALAKRISHNAN, MANAPPETTY HOUSE, PONJANAM DESOM, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT- 680001.** **R1 BY SRI. SANTHOSH PETER, PUBLIC PROSECUTOR R2 BY ADV. SRI.RAJESH CHAKYAT** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 ## **Crl.MC.No.6415 OF 2017** ## **ALEXANDER THOMAS, J.** ## **================================** Crl.M.C.No.6415 of 2017 =============================== Dated this the 21[st] day of December, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case filed under 482 of Cr.PC is as follows:- _“.....to quash Annexures I and II, FIR dated 03.07.2014 and Final Report dated 17.08.2014 in Crime No.691 of 2014 of Kattoor Police in the interest of justice.”_ 2. Heard Sri.N.L.Bitto, learned counsel appearing for the petitioner (A3), Sri.Santhosh Peter, learned Public Prosecutor appearing for R1, State of Kerala and Sri. Rajesh Chakyat, learned counsel appearing for R2. Though notice has been duly served on contesting respondent No.3 (A1), there is no appearance for that party. 3. The petitioner herein has been originally arrayed as accused No.3 in the impugned Annexure I, FIR in Crime No.691 of 2014 of Kattoor Police Station, which has been registered for the offences punishable under Section 498A read with Section 34 of the 3 ## **Crl.MC.No.6415 OF 2017** Indian Penal Code, in pursuance of the impugned Annexure III petition in 30.06.2014 filed by the petitioner before the Superintendent of Police, in respect of the alleged incidents which happened for the period from 01.01.2003 to 03.07.2014. 4. In Annexure-I FIR, R3 herein is A1, who is the husband of the 2[nd] respondent lady defacto complainant and original accused No.2 is the mother of A1 and original accused No.3 is the petitioner herein (who is the sister of A1). The allegations are to the effect that, after the marriage of the 2[nd] respondent with A1, the 2[nd] respondent has been treated with cruelty and harassment by the accused persons and that they have committed the abovesaid offences. The police after the investigation has filed the impugned Annexure-II Final Report/Charge Sheet in Annexure-I Crime No.691/2014 of Kattoor Police Station, whereby the police has deleted original A2 (mother of A1) from the accused array and has arrayed as accused therein only A1 (husband of R2) as well as the petitioner herein as A2 therein, who was originally A3 in the FIR. The offences alleged in Annexure-II Final Report/Charge Sheet are also those punishable under Section 498A read with Section 34 of the IPC. 5. The Judicial First Class Magistrate Court, Irinjalakuda 4 ## **Crl.MC.No.6415 OF 2017** has taken cognizance of the abovesaid offences and now the case is pending as Calendar Case, C.C.No.8067 of 2014 on the file of the Judicial First Class Magistrate Court, Irinjalakuda. It is this proceedings at Annexure II Final Report/Charge Sheet, which has now led to the pendency of calendar case, C.C.No.8067 of 2014 on the file of the Judicial First Class Magistrate Court, Irinjalakuda, that is challenged in this petition filed under Section 482 of Cr.P.C. 6. Sri.N.L.Bitto, learned counsel appearing for the petitioner (A3) has raised two main contentions. The first contention is to the effect that, at no point of time the marriage as between A1 and the 2[nd] respondent herein has been solemnized in the manner known to law and that therefore, no valid marital relationship has been in existence between the said parties and hence the offence as per Section 498A of the IPC will not be disclosed in this case. In that regard, the petitioner would place reliance on the decisions of this Court as in _**Unnikrishnan @ Chandu v. State of Kerala [2017 (4) KHC 356]**_ . In that regard, the petitioner would also point out that, though the abovesaid aspect has been pointed out before the investigating officer concerned that there was no valid marriage solemnized as between A1 and R2 herein, that crucial aspect has not been 5 ## **Crl.MC.No.6415 OF 2017** investigated at all and no effort has been taken by the investigating officer to get the details of the alleged marriage at least from A2 and to find out as to whether the marriage has been solemnized and whether the marriage certificate in that regard is available, etc. It is pointed out that going by the case of the 2[nd] respondent, the marriage was in terms of the Hindu customary rites and since her case is that, the marriage has been solemnized in accordance with the Hindu Marriage Act, 1955, the provisions of the Hindu Marriage Rules framed thereunder envisaged for registration of the marriage and even the provisions of the Kerala Registration of Marriages (Common) Rules, 2008 also envisaged for registration of marriage are applicable and if at all the marriage was really solemnized, certainly marriage registration certificate of the competent authority could have been secured. The fact that the investigating officer has not cared to investigate this crucial aspect, cannot be the legal basis to make the petitioner face the impugned criminal proceedings. 7. In that regard, Sri.Rajesh Chakyat, the learned counsel for R2 would point out that, even now the petitioner has not pointed out that she or any other accused, had at any point of time asserted any such factual claim before the investigating agency about the 6 ## **Crl.MC.No.6415 OF 2017** alleged non-existence of the solemnization of the marriage and further that if at all the investigating officer has allegedly not looked into those aspects, certainly nothing prevented the petitioner and other accused persons from having filed petition before the District Police Chief concerned, who is the supervisory officer. That the fact that the petitioner and the other accused persons have not cared to file any such petitions either before the investigating agency or before the superior officer would clearly show that the abovesaid contentions raised only for the sake of hyper technicality. 8. Further Sri.Rajesh Chakyat, learned counsel appearing for R2 would submit that, earlier R2 was constrained to file a Maintenance Case, as M.C.No.192/2014 before the Family Court, Irinjalakuda, claiming payment of maintenance by R3 herein (A1) to the wife and child and therein, A1 herein had taken up the case that there was no valid marriage solemnized between them, but has clearly admitted therein that, R3 herein and R2 herein have been living as husband and wife for a quite long period and in that relationship, a child was also born, etc. 9. Sri.N.L.Bitto, learned counsel appearing for the petitioner would point out that, in a case where the paternity of the child is 7 ## **Crl.MC.No.6415 OF 2017** admitted, then the Family Court may not have gone into the issue as to whether the marriage has been solemnized or not and that even going by the said case, it can be seen that, the husband has asserted that marriage was never solemnized in the manner known to law. That unlike in the case of maintenance claim, it is now well settled by rulings of this Court as in _**Unnikrishnan's case (supra) [2017 (4) KHC 356]**_ that a valid marriage solemnized between the parties is a _sine qua non_ for disclosure of the offence as per Section 498A of the IPC. 10. This Court queried to both the learned counsel appearing for R2 herein as well as the learned Public Prosecutor, as to whether the investigating agency has examined the said issues and as to whether any materials have been produced by way of marriage registration certificate, etc. so as to form part of the memorandum of evidence appended to Annexure-II Final Report/Charge Sheet, etc. To this, the learned counsel for R2 and the learned Public Prosecutor have not been able to apprise to this Court with any clarity as to whether or not any such exercise had been done by the investigating officer. 11. However, it appears that the petitioner has not raised this objection in writing either before the investigating agency concerned 8 ## **Crl.MC.No.6415 OF 2017** as well as before the superior police officer concerned and therefore, this Court may be in a way disabled from considering this issue due to lack of materials. Further in the nature of the orders proposed to be passed in the petition, decision on this point need not be necessary. Hence this Court is not deciding the correctness or otherwise of the first contention raised by Sri.N.L.Bitto, learned counsel appearing for the petitioner (A2). 12. The other contention raised by the petitioner is that, even if the allegations raised in the impugned criminal proceedings at Annexures-II and III are assumed to be broadly correct, still the offence under Section 498A of the IPC will not be disclosed as against the petitioner herein (A2) who is only the sister of A1. Further it is pointed out that the mother of A1, who was originally arrayed as accused No.2 in the FIR, has been deleted from the accused array after completion of the investigation, as can be seen from Annexure-II Final Report/Charge Sheet filed in this case and that this has been so as the investigating agency themselves were fully convinced that no serious allegations are there as against A2 in the FIR (mother of A1). 13. To deal with the abovesaid second contention of the petitioner, it may be pertinent to refer to the broad nature of the 9 ## **Crl.MC.No.6415 OF 2017** allegations raised by R2 herein as against the petitioner (A2). A reading of the materials of the impugned criminal proceedings would make it clear that, the case of the the 2[nd] respondent, as can be seen from Annexure-III paragraph No.3, is that, after the birth of the child, the mother of R2 had come to Bombay to visit the child in the hospital, but that A1 had not permitted R2 herein to have any further contacts with the family members of A1 and further that when A1 and R2 had left Bombay to the native place of the accused persons, A1 had not permitted R2 even to see her mother. That later, after reaching the native place, A1 had left R2 along with the mother and sister (petitioner herein) of A1 and thereafter A1 had gone back to Bombay. Further that, at that time, original A2 (mother of A1) was then staying with R2 and A1 had gone back to Bombay for his employment and come back to the native place after two years. Thus it can be seen that, no allegations are raised as against the petitioner herein (original A3) in paragraph No.3 of AnnexureIII complaint. 14. In paragraph No.4 of Annexure-III, the allegations are to the effect that, the petitioner herein, who is the sister of A1, was living separately after constructing her house. That thereafter whenever A1 used to come to the native place, he used to reside with 10 ## **Crl.MC.No.6415 OF 2017** the petitioner (sister of A1) and not with R2 herein and that A1 never even used to attend to the phone calls of R2 herein. Further that, R2 came to know of the visits of A1 to the native place only as and when the petitioner (original A3) used to inform R2 by telephone. Even then, R2 used to stay in the native place only for about a week. Thereafter, a vague and generalized allegation is made that on those occasions, when A1 used to come to the native place, original A2 and A3 (mother and sister of A1) used to frequently find fault with R2 and used to treat her cruelty, etc. 15. Hence even from the reading of Annexure-IV, there are no major allegations raised against the petitioner, except that whenever A1 used to come to the native place, the mother and sister of A1 used to scold and find fault with R2 and used to commit cruelty on her, etc. The major portion of paragraph No.4 of Annexure-IV would show that even some favourable aspects are mentioned about the petitioner inasmuch as it was she who used to inform R2 about the visits of A1. 16. In paragraph No.5 of Annexure-III complaint, the allegations are to the effect that A1 used to send money for the expenses of R2 herein and her child to original A3 (petitioner) and 11 ## **Crl.MC.No.6415 OF 2017** that the petitioner used to give only about Rs.1,000 to Rs.1,500/- to R2. No allegations are made therein as to the exact amounts allegedly entrusted by A1 with the petitioner. Further that in the year of 2011, A3 (petitioner herein) had become pregnant and delivered a child and at that time, as insisted by A1, R2 and the mother of A1 used to reside with the petitioner. That at that time, A2 and A3 (mother of A1 and the petitioner) used to mentally harass R2. That thereafter, the petitioner herein (A3) used to say that she cannot meet the expenses of R2 herein and her child, as they were residing in the residence of the petitioner and that thereupon, the petitioner had told her to go out of her house and thereupon she and the child had gone back to reside with the mother of A1. All the other allegations thereafter are raised as against A1. 17. A reading of paragraph No.5 of Annexure-III would also make it clear that, no specific and precise allegations are made therein as to the total amounts entrusted to the petitioner by her brother, etc. to know as to whether the maintenance amount has been held. So also, the other allegations are to the effect that, at some point of time, the mother of A1 and R2 and her child came to reside in the residence of the petitioner and after sometime, the 12 ## **Crl.MC.No.6415 OF 2017** petitioner used to say that she is not in a position to bear the expenses of R2 and her child and she had asked them not to stay with the petitioner, upon which, R2 and her child were constrained shift to the residence of the mother of A1, etc. These allegations cannot be the basis to allege that the petitioner has committed the offence as per Section 498A of the IPC. 18. Section 498A of the IPC and its explanations reads as follows:- **“** _**Section 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 purposes of this section, "cruelty means"—_ _(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.”_ 19. The Apex Court in the decision in **Girdhar Shankar** ## **Tawade v. State of Maharashtra [2002 (5) SCC 177]** as follows in paragraph No.3 thereof. _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 hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures:_ 13 ## **Crl.MC.No.6415 OF 2017** _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 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._ In **Gurnaib Singh v. State of Punjab [2013 (7) SCC 108]** , the Apex Court by analysing the abovesaid provisions under Section 498A of IPC, has held that clause (a) of Explanation appended to Section 498A defines cruelty to mean, “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 and clause (b) thereof pertains to unlawful demand and clause (a) can take in its ambit mental cruelty etc. 20. Further the Apex Court in the decision in _**Ghusahbai**_ ## _**Raisanghbhai Chorasiya v. State of Gujarat [2015 (11)SCC**_ _**753]**_ has held in paragraph No.18 thereof that the first limb of Section 498A refers to cruelty and has nothing to do with demand of dowry, etc. 21. After hearing both sides and after going through the 14 ## **Crl.MC.No.6415 OF 2017** materials in the impugned criminal proceedings, this Court is constrained to take the view that, no serious allegations are raised as against the petitioner (A3) so as to justify the continuance of the impugned criminal proceedings as against the petitioner, for the offence as per Section 498A of the IPC. At best, it could be a case that some of the allegations may constitute the degree of cruelty as understood in civil law for the purpose of family court matters and litigative proceedings etc. But it cannot be said that there are strong and cogent materials to disclose the criminal offence as per Section 498A of the IPC as against the petitioner. Even going by the case of the 2[nd] respondent, most of the time petitioner was residing in her own house along with her husband and children etc. Accordingly, this Court is of the view that continuance impugned in the criminal proceedings would be an abuse of the process of that Court. 22. In that view of the matter, it is ordered that the impugned Annexure II Final Report/Charge Sheet filed in Annexure I Crime No.691/2014 of Kattoor Police Station, Thrissur District, which has now led to the pendency of Calendar Case, C.C.No.8067/2014 on the file of the Judicial First Class Magistrate Court, Irinjalakuda, to the limited extent it is directed as against the petitioner herein (A2 15 ## **Crl.MC.No.6415 OF 2017** therein) and all consequential proceedings arising therefrom as against the petitioner herein will stand quashed and set aside. It is made clear that the impugned criminal proceedings to the extent it is directed as against the other accused, will may go on, untrammeled and uninfluenced in any manner by the observations and findings made by this Court hereinabove. 23. The petitioner will produce certified copies of this order before the Investigating officer concerned as well as before the Judicial First Class Magistrate Court, Iringalakuda, who has dealt with C.C.No.8067/2014, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** **hmh** 16 ## **Crl.MC.No.6415 OF 2017** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I A TRUE CERTIFIED COPY OF FIRST INFORMATION REPORT DATED 2-7-2014 IN CRIME NO.691 OF 2014 OF KATTOOR POLICE STATION.** **ANNEXURE II A TRUE COPY OF CHARGE SHEET SUBMITTED IN CRIME NO.691 OF 2014 OF KATTOOR POLICE STATION ON 17-8-2014.** **ANNEXURE III A TRUE COPY OF THE PRIVATE COMPLAINT FILED BEFORE JFCM IRINJALAKUDA DATED 30-6-2014.** **RESPONDENT'S/S EXHIBITS: NIL**