Sheik Rafi S/o K.B. Haneef and others v. State of Kerala and Saira K.E

## **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.6291 OF 2013** **AGAINST THE CHARGE IN CC NO.2569/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI** ## **PETITIONERS/ACCUSED 1 TO 6:** **1 SHEIK RAFI S/O.K.B.HANEEF, HOUSE NO.33/2556A, AKG VAYANASALA ROAD, CHAKKARAPARAMBU, VYTTILA, KOCHI-682 019, ERNAKULAM DISTRICT. 2 K.B.HANEEF S/O BHAVUNI, HOUSE NO.33/2556A, AKG VAYANASALA ROAD, CHAKKARAPARAMBU, VYTTILA, KOCHI-682 019, ERNAKULAM DISTRICT. 3 NAFEESA W/O.K.B.HANEEF, HOUSE NO.33/2556A, AKG VAYANASALA ROAD, CHAKKARAPARAMBU, VYTTILA, KOCHI-682 019, ERNAKULAM DISTRICT. 4 REHNA W/O.BABU, CC 35/2566A, AKG VAYANASALA ROAD, CHAKKARAPARAMBU, VYTTILA, KOCHI-682 019, ERNAKULAM DISTRICT. 5 SHAINA W/O.LATHEEF, PALACKAL HOUSE, THOPPUMPADY P.O, KOCHI-682 005. 6 LATHEEF PALACKAL HOUSE, THOPPUMPADY P.O, KOCHI-682 005.** **BY ADVS. SRI.C.A.MAJEED SRI.K.H.ASIF SMT.RAAGA R.RAMALAKSHMI SRI.SOORAJ K.ABRAHAM** Crl.MC.No.6291 OF 2013 2 ## **RESPONDENTS/COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682 031.**| |**2**|**THE STATION HOSUE OFFICER**| ||**MATTANCHERY POLICE STATION, KOCHI 682 002,**| ||**ERNAKULAM DISTRICT.**| |**3**|**SAIRA K.E**| ||**D/O.LATE K.M.IBRAHIM, KOVILAKATH HOSUE,**| ||**PULLARDESAM ROAD, PALLURUTHI P.O, COCHIN-6.**| **R3 BY ADV. SRI.S.RAJEEV** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.6291 OF 2013 3 ## **ALEXANDER THOMAS, J.** ------------------------------------------- Crl.M.C. No. 6291 of 2013 ---------------------------------------------Dated this the 04[th ] day of December, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.) is as follows:- _"............to quash the Charge in No.2569 of 2013, on the files of the Judicial First Class Magistrate Court II, Kochi, against the petitioners who are arrayed as the accused therein."_ 2. Heard Sri.C.A. Majeed, learned counsel appearing for the petitioners (accused persons), Sri.Santhosh Peter, learned Public Prosecutor, appearing for official respondents 1 & 2 and Sri.S.Rajeev, learned counsel appearing for contesting respondent No.3 (lady _de-facto_ complainant) . 3. The petitioners herein have been arrayed as accused 1 to 6 among the 6 accused in the impugned First Information Report (FIR) in crime No.1543/2012 of Mattanchery Police Station, Ernakulam, registered for offences punishable under Crl.MC.No.6291 OF 2013 4 Secs.498A, 496 & 494 of the Indian Penal Code (IPC) pursuant to Annexure-A6 private criminal complaint dated 17.12.2012, filed by contesting respondent No.3 (lady _de-facto_ complainant) in which the learned Magistrate had directed the Police to register a crime and conduct investigation into the allegations made thereon. The Police, after investigation has deleted the offences as per Secs.496 & 494 of the IPC and has filed the impugned Annexure-A7 Final Report/Charge Sheet in the said crime No.1543/2012 of Mattanchery Police Station, as against the petitioners herein (6 accused persons), for the sole offence punishable under Sec.498A of the IPC. Later, the learned Magistrate has taken cognizance and the case is now pending as Calendar Case, C.C. No **.** 2569/2013 on the file of the Judicial First Class Magistrate's Court-II, Kochi. It is this proceedings at the impugned Annexure-A7 Final Report/Charge Sheet in crime No.1543/2012 of Mattanchery Police Station, which has now led to the institution of Calendar Case, C.C. No.2569/2013 on the file of the Judicial First Class Magistrate's Court-II, Kochi, which is under challenge in this case. Later, it appears that the above C.C. has been transferred Crl.MC.No.6291 OF 2013 5 to the Judicial First Class Magistrate's Court-V, Kochi, where the case is now pending. 4. According to the prosecution, the 1[st] petitioner herein (A1) is the husband of the 3[rd] respondent and petitioners 2 to 6 herein are-the father (A2), mother (A3), sister (A4), sister (A5) and husband of A5 (who has been arrayed as A6). 5. It appears that the 3[rd] respondent (lady _de-facto_ complainant) has initially filed Annexure A-5 complaint/petition dated 12.04.2012 before the 2[nd] respondentCircle Inspector of Police, Palluruthi, making similar complaints. 6. The case set up therein is that the 1[st] petitioner herein had married the 3[rd] respondent on 20.04.1998 and that they are living separately since 2002. Further that the 1[st] petitioner used to frequently come to her house and harass her and the child born to them, unnecessarily. That she was forced to go to Kodaikanal with the child to avoid unnecessar **y vituperations** of the 1[st] petitioner, which was causing harassment to her and the child. That, later she has come to know that the 1[st] petitioner has recently married a lady called Crl.MC.No.6291 OF 2013 6 Rekha without the 3[rd] respondent's permission, etc. 7. Further that since the police has not taken any action on Annexure A-5 complaint dated 12.04.2012, she has preferred the impugned Annexure A-6 private criminal complaint dated 17.12.2012, which led to the registration of the impugned crime No.1543/2012 of Manjeri Police Station as a result of the directions issued by the learned Magistrate under Sec.156(3) of the Code of Criminal Procedure (Cr.P.C.) to register a crime and conduct investigation thereon, etc. 8. In Annexure A-6 private criminal complaint dated 17.12.2012 also the case of the 3[rd] respondent is that the 1[st] petitioner had married her on 20.04.2012. A perusal of Annexure A-6 private criminal complaint would show that there is no precise allegation therein that the couple have been living separately since the year 2002. However there are certain allegations in page 4 of Annexure A-6 that at some point of time the 1[st] petitioner had left the gulf country and thereafter he has not looked after her. In page No.5 of Annexure A-6, it is stated that some time presumably after 1997 the 1[st] petitioner had gone to the gulf country and thereafter he has not cared to Crl.MC.No.6291 OF 2013 7 look after the child and that he had deserted her, etc. In the beginning portion of paragraph No.6 of Annexure-A 6, the incidents are narrated from the year 1997 and therefore, it could be broadly presumed or inferred that the allegation that the 1[st] petitioner had gone to gulf country and that thereafter never cared to look after the 3[rd] respondent of her child, etc. could have happened in and around 1997 or thereafter. However, in contradiction to Annexure A-5, there is no definite case that the couples have been separated since the year 2002. 9. Various other allegations are made in Annexure A-6 as against the other petitioners (A2 to A6). 10. The 1st petitioner would admit that he had earlier lawfully married the 3rd respondent. That thereafter, irretrievable differences of opinion between the couple, they were living separately and that the 1st petitioner had lawfully dissolved the marital relationship by rendering Annexure A-1 Talaq on 28.02.2004. That, the rendering of Annexure A-1 Talaq was duly communicated to the 3rd respondent by registered post with acknowledgment due as per Annexure A-2 dated 04.03.2004. Further that the said rendering of the Talaq Crl.MC.No.6291 OF 2013 8 was also duly communicated as per Annexure A-3 registered letter with acknowledgment due dated 04.03.2004 addressed to the competent Juma-Ath Committee, concerned as can be seen from Annexures A-3 & A-4. 11. However, the 3[rd] respondent has suppressed about the crucial fact of the dissolution of the marriage in Annexure A-5 complaint dated 12.04.2012 given before the Inspector of Police as well as in Annexure A-6 private criminal complaint dated 17.12.2012 submitted before the jurisdictional Magistrate court, concerned. 12. Annexures A-5 & A-6 proceeds on the basis that the marriage of the couple was on 20.04.1992. In Annexure A-5 dated 12.04.2012 the definite case of the 3[rd] respondent is that the couple were separated since the year 2002 and that later, she came to know that sometime recently in the year 2012 the 1[st] petitioner has married another lady without the consent of the 3[rd] respondent etc. Whereas in Annexure-A6, there is no definite and precise case as to when the couple were separated but it can be inferred from the overall averments in para6 of Annexure-A6 that the separation would have been since the Crl.MC.No.6291 OF 2013 9 year 1997. However, both in Annexure-A5 &A6 the 3[rd] respondent has fully suppressed about the factum of the dissolution of marriage by the rendering of Annexure-A1 Talaq dated 28.02.2004 which has duly communicated to her by Annexure -A2 dated 04.03.2004. 13. Probably it appears from the submissions of the learned counsel for the 3[rd] respondent that the case of the 3[rd] respondent is that the said Talaq was not valid in law and that therefore she has not recognised it and therefore she has not made mention about that. However the serious aspect of the matter is that if at all she had case that the 3[rd] respondent had a case that the Talaq was not legally valid, then she was obliged to have clearly appraised the jurisdictional Magistrate court concerned in Annexure A-6 that Talaq was rendered by the husband on 28.02.2004 as communicated to her by Annexure A-2 dated 04.03.2004, but that she does not recognize it and that the parties are separated etc. In Annexure-A5 also the factum of dissolution of the marriage is suppressed. 14. Therefore going by case set up by the 3[rd] respondent in Annexure A-5 the couple was separated since year 2002. Crl.MC.No.6291 OF 2013 10 Going by her case set up in Annexure A-6 the couple have been separated since the year 1997. 15. The 1[st] petitioner has rendered Talaq as per Annexure A-1 dated 28.02.2004. The 3[rd] respondent would state in Annexure A-5 & A-6 that sometime in 2012 the 1[st] petitioner had married another lady without the consent of the 3[rd] respondent. The 1[st] petitioner would also admit that he has married another lady in the year 2012 but only after he had rendered Talaq in respect of the marital relationship with the 3[rd] respondent as early as in 28.02.2004. According to the 1[st] petitioner, the couple were separated for a very long time due to irretrievable differences of opinion and the Talaq has taken place on 28.02.2004 and he still waited for a very long time and only in 2012, he has married another lady lawfully. 16. Accordingly, the 1[st] petitioner would point out that the 3[rd] respondent fully knew about the Talaq since the 1[st] week of March 2004 and she suppressed the said factual aspects both in Annexures A-5 & A-6 and after being separated for a very long time she has filed the instant complaints at Annexures A-5 & A-6 for the very first time as late as on 12.04.2012 and Crl.MC.No.6291 OF 2013 11 07.12.2012 respectively, when she came to know that the 1[st] petitioner has married another lady. 17. Hence the 1[st] petitioner has raised a very strong contention of the extra ordinary long and unexplained delay on the part of the 3[rd] respondent in instituting the criminal proceedings in question. 18. In the instant case, even going by the case of the 3[rd] respondent, the couples have been separated since the year 1997 or the year 2002 and Talaq is communicated in March 2004. The 1[st] petitioner has married another lady sometime before the submission of Annexure A-5 complaint dated 12.04.2012. It is only thereafter that the 3[rd] respondent gives a complaint as per Annexure A-5 for the first time as late as on 12.04.2012, which is followed up by Annexure A-6 given on 17.12.2012. Even going by the case of the 3[rd] respondent, the alleged incidents of harassment and cruelty, which constitutes the basis of Sec.498A of the IPC would have taken place when the couples were living together. Of course, the learned counsel for the 3[rd] respondent would point out that there are averments in Annexure A-6 that even after the separation the husband Crl.MC.No.6291 OF 2013 12 used to come and harass the 3[rd] respondent and her child. But the factum of the matter is that the 3[rd] respondent has no case that any time after the separation the 2[nd] , 5[th] & 6[th] petitioners have come and harassed her and committed any cruelty. The 3[rd] respondent has no case that the rendering of Annexure A-1 Talaq made as early as on 28.02.2004 and duly communicated as early as on 04.03.2004 has been challenged by her in the manner known to law through appropriate litigative proceedings. Therefore, one has to proceed in the premise that the 3[rd] respondent has not challenged Annexure A-1 Talaq in the manner known to law and therefore, the marital relationship stands dissolved. Any alleged acts of harassment and cruelty which is sought to be made the basis of the offence as per Sec.498A of the IPC, if committed after the rendering of Annexure A-1 Talaq, cannot constitute the offence as per Sec.498A of the IPC for the simple reason that the marital relationship stands dissolved and therefore, any alleged acts done thereaffter cannot be the basis to impugn the criminal culpability in terms of Sec.498A of the IPC. Hence, at best the respondents can only contend that the alleged acts of Crl.MC.No.6291 OF 2013 13 cruelty would have happened at a time before the Talaq and at a time when the couple were living together. According to the case of the 3[rd] respondent the couple have been separated since the year 1997 or 2002. There is no definite case set up in that regard. Therefore, there is a long and extraordinary delay between the alleged acts and the filing of the complaint as per Annexure A-5 complaint as late as on 12.04.2004 and the filing of Annexure A-6 private criminal complaint as late as on 17.12.2012. The delay has not been explained in any manner by the respondents. 19. The Apex court and various High Courts including this Court has rendered new decisions dealing with the cardinal aspect of delay in lodging of FIR, which has been held by the Apex Court in decisions as in _**State of A.P. v. M. Madhusoodana Rao,**_ [2008 (15) SCC 582] that delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthoughts and delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a Crl.MC.No.6291 OF 2013 14 concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is highly essential that the delay in lodging the criminal proceedings should be satisfactorily explained by the prosecution. Resultantly, when the substratum of the evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety. In the light of the abovesaid dictum laid down by the courts, the impugned criminal proceedings is vitiated on account of the long and extraordinary delay as aforesaid. 20. Further, it can be seen that both in Annexure A-5 as well as in Annexure A-6, the 3[rd] respondent has fully suppressed about the factum of rendering of Annexure A-1 Talaq dated 28.02.2004 and it is being communicated to her as per Annexure A-2 dated 04.03.2004. Hence, the 3[rd] respondent has approached the criminal court with unclean hands by suppressing material crucial facts. Because of the vital suppression made by the 3[rd] respondent, consequent to the directions issued by the Magistrate, the Police has registered offences not only for offences as per Sec.498 A of the IPC but Crl.MC.No.6291 OF 2013 15 also in respect of offences as per Secs.494 & 496 of the IPC. Sec.494 of the IPC deals with marrying again during the lifetime of husband or wife and Sec.496 of the IPC deals with marriage ceremony fraudulently gone through without lawful marriage, etc. 21. It is not known as to the reasons as to how the police has deleted the offences as per Secs.494 & 496 of the IPC in the impugned final report. Presumably, this could be on account of the legal bar engrafted under Sec.198 of the Cr.P.C. which lays down that the marital offences as in Secs.494 & 496 of the IPC would be taken cognizance of by the criminal court only on the basis of complaint in writing of the person who is aggrieved by the marital offence and not on the basis of a police report/final report/charge sheet or it could also be on account of the fact that the Police, after investigation, could know that the 1[st] petitioner had already divorced the 3[rd] respondent. But the cardinal aspect of the matter is that the 3[rd] respondent has suppressed vital and crucial facts in Annexure A-6 complaint. This has to be viewed very seriously for the simple reason that the entire incidents and offences alleged are arising out of a Crl.MC.No.6291 OF 2013 16 marital relationship. Therefore, this Court has no hesitation to hold that on account of the vital suppression of material facts made by the 3[rd] respondent in instituting Annexure A-6 private criminal complaint, the said criminal proceedings arising thereof from is vitiated on account of material suppression made by the 3[rd] respondent. 22. As already pointed out hereinabove, the 3[rd] respondent has also not come clean by stating with all clarity and precision as to whether the couple were separated since the year 2002 as stated in Annexure A-5 complaint given to the Police on 12.04.2008 as when they were separated and if so, whether it is in the year 1997 as may be possibly suggested from a reading of the averments in paragraph No.6 of Annexure A-6 complaint. 23. Further it has been noted that the 2[nd] & 3[rd] petitioners (A2 & A3) are the father and mother, respectively, of the 1[st] petitioner who are now aged in their mid 80's and elderly senior citizen who are quite feeble in health. The 4[th] & 5[th] petitioners (A4 & A5) are the 2 sisters of the 1[st] petitioner (A1) and 6[th] petitioner (A6) is the husband of A5. Crl.MC.No.6291 OF 2013 17 24. From a reading of Annexures A-5 & A-6 complaints it is seen that many of the aspects raised in Annexure A-6 has never been even remotely mentioned in Annexure A-5 complaint given at earlier point of time on 12.04.2012. Therefore, it appears that a new case has been set up by the 3[rd] respondent in the private criminal complaint filed subsequently as per Annexure A-6 dated 17.12.2012. That apart, most of the allegations are quite vague and generalised and there is no reference to any point of time or even the rough month and year in which the alleged incidents were taken place except making sweeping and generalised allegations as against the accused persons concerned. Such generalised, vague and sweeping allegations cannot be the basis for properly setting in motion a criminal proceedings. 25. The Apex Court has laid down in a series of rulings regarding the vital ingredients to be satisfied for disclosing the offence as per Sec.498A of the IPC in many cases as in _**Giridhar Shankar Thawade v. State of Maharashtra**_ [(2020) 5 SCC 177], _**Gurmeg Singh v. State of Punjab**_ [(2013) 7 SCC 108], _**Pinakan Mahipatray Rawal v. State**_ Crl.MC.No.6291 OF 2013 18 _**of Gujarat**_ [(2013) 10 SCC 48], _**Ghusabhai Rasiangbhai Chorasiya & Ors. v. State of Gujarat**_ [(2015) 11 SCC 753], the abovesaid vague and generalised allegations made in Annexure A-6 cannot be the basis to constitute the vital ingredients of the offence as per Sec.498A of the IPC. The spouses were separated either since 1997 or since 2002 and the marital relationship was dissolved as early as in February 2004. 26. The 1[st] petitioner has married some time in 2012. life of all the parties concerned would have changed during this long period. If the petitioners/accused persons are made to face criminal culpability proceedings at this belated point of time, it cannot be said t be a procedure, which is just, fair and reasonable and therefore, the legal system compels them to face such impugned criminal proceedings at the instant case, it cannot be said that the said process would amount a procedure which is just, fair and reasonable which is _sine-qua-non_ for deprivation of precious right to life enshrined in Article 21 of the Constitution of India. This, the Court would says as it is now trite to to require the recitals of the judicial authority that the precious right of life guaranteed to all citizens of this Crl.MC.No.6291 OF 2013 19 country and as per Article 21 in part III of the Constitution of India is a constitutional guarantee for dignified life which can be deprived only in accordance with the procedure, which is just, fair and reasonable. The right to fair trial is one of the inalienable facets of Article 21. If the petitioners are made to face a trial in a case like this, it cannot be said that the said process is fair, just and reasonable and therefore, the said process would amount to infringement and derogation of the precious right to the petitioners guaranteed by the constitution in terms of Article 21 thereof. Suffice to say, the impugned criminal proceedings is illegal, ultravires and unreasonable. Therefore, this Court is of the considered view that the impugned criminal proceedings would amount an abuse of the process of the court and hence it would require interdiction in the hands of this Court in exercise of its inherent extraordinary powers conferred under Sec.482 of the Cr.P.C. 27. In that view of the matter it is ordered that the impugned Annexure A-7 Final Report/Charge Sheet, filed in Crime No.1543/2012 of Mattanchery Police Station, which has earlier led to the pendency of C.C. No.2569/2013 on the file of Crl.MC.No.6291 OF 2013 20 the Judicial First Class Magistrate Court-II, Kochi, and which is now pending as C.C. No.209/2014 on the file of the Judicial First Class Magistrate Court-V, Kochi, as against the petitioners/accused and all further proceedings emanating therefrom as against the petitioners/accused will stand quashed and set aside. 28. The petitioners will produce certified copies of this order before the Investigating Officer concerned as well as before the trial court concerned, for necessary information. With these observations and directions the above criminal miscellaneous case will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//16122020 Crl.MC.No.6291 OF 2013 21 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**ANNEXURE A1**|**PHOTOCOPY OF THE TALAQ LETTER DATED**| |---|---| ||**28.02.04.**| |**ANNEXURE A2**|**PHOTOCOPY OF THE ACKNOWLEDGMENT CARD**| ||**DATED 04.03.04.**| |**ANNEXURE A3**|**PHOTOCOPY OF THE ACKNOWLEDGMENT CARD**| ||**DATED 04.03.04.**| |**ANNEXURE A4**|**PHOTOCOPY OF THE ACKNOWLEDGMENT CARD**| ||**DATED 04.03.04.**| |**ANNEXURE A5**|**PHOTOCOPY OF THE COMPLAINT SUBMITTED**| ||**BY THE DE-FACTO COMPLAINANT DATED**| ||**12.4.12 BEFORE THE CIRCLE INSPECTOR**| ||**OF POLICE, PALLURUTHY.**| |**ANNEXURE A6**|**PHOTOCOPY OF THE COMPLAINT DATED**| ||**17.12.12 FILED BY THE DE-FACTO**| ||**COMPLAINANT.**| |**ANNEXURE A7**|**PHOTOCOPY OF THE CHARGE IN CC**| ||**NO.2569 OF 2013 REGISTERED BY THE**| ||**2ND RESPONDENT.**| |**RESPONDENTS' **|**EXHIBITS:**<br>**NIL**|