Smt. Kunhivi v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935 Crl.MC.No. 448 of 2013 () -------------------------CC 497/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYOLI DATED CRIME NO. 169/2012 OF PAYYOLI POLICE STATION , KOZHIKODE PETITIONER(S)/2ND ACCUSED: -------------------------- SMT. KUNHIVI, AGED 45 YEARS W/O.AZEEZ ,MOROTHUM THAZHA HOUSE, KARIKKAMKULAM KARAPPARAMBU P.O., KOZHIKODE - 673 510 BY ADVS.SRI.K.D.BABU SRI.P.G.JAYASHANKAR KUM.P.G.GAYATHRI RESPONDENTS/STATE/COMPLAINANT(S): ------------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 2. SMT.HAIRUNNISSA, AGED 27 YEARS, D/O.SRI NASAR, MUNEER MANZIL, NHEZUKKAD THAREMMAL IRNGAL, KOTTAKKAL P.O 673521 R2 BY ADV. SRI.K.M.FIROZ R2 BY ADV. SRI. P. ABDUL JALEEL R2 BY ADV. SMT.M.SHAJNA R1 BY PUBLIC PROSECUTOR SRI REJI JOSEPH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO.448/2013 APPENDIX PETITIONER(S) EXHIBITS ANNEXURE A CERTIFIED COPY OF THE JUDGMENT DATED 28-02-20006 IN CC NO 327/2005 IN THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS PAYYOLI ANNEXURE B CERTIFIED COPY OF THE COMPLAINT BEARING CMP NO 602/2012 DATED 26-03-2012 ANNEXURE C CERTIFIED COPY OF THE FIR IN CRIME NO 169/2012 DATED 02-04-2012 ANNEXURE D CERTIFIED COPY OF THE STATEMENTS GIVEN BY THE 2ND RESPONDENT AS WELL AS OTHER WITNESS BEFORE THE INSPECTOR OF POLICE PAYYOLI STATION ANNEXURE E CERTIFIED COPY OF THE FINAL REPORT FILED U/S 173 CR.PC DATED 23-07-2012 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.448 of 2013 -------------------------------------Dated this the 16[th] day of January, 2014.** ## **ORDER** Petition filed under Section 482 of the Criminal Procedure Code. 2. Petitioner is the 2[nd] accused in C.C.No.497 of 2012 on the file of the Judicial First Class Magistrate Court, Payyoli. She, along with other accused, is implicated in offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code (for short, “IPC”). 2[nd] respondent is the complainant. She filed a private complaint (Annexure B) before the learned Magistrate which was forwarded for investigation under Section 156(3) of the Criminal Procedure Code (for short, “Cr.P.C.”). Annexure C is the FIR. Annexure E is the final report filed in this case. Gist of the allegations in the complaint is that on 27.07.2003, 1[st] accused married the complainant as per their religious rites. They lived as husband and wife. At that time, accused 1 and 2 harassed the complainant demanding money and gold ornaments. It is seen from Annexure A judgment that the complainant had earlier filed another case against the petitioner and 1[st] accused. That was tried and disposed by the learned Magistrate and the accused were acquitted. 2 Crl.MC No.448/2013 3. Heard the learned counsel for the petitioner and the learned counsel for the complainant. 4. Learned counsel for the petitioner submitted that she is unnecessarily dragged in a second round of prosecution without any factual or legal justification. According to him, all the grievances raised by the complainant have been considered and decided in the first trial as evidenced by Annexure A judgment and found to be not sustainable. Learned counsel for the petitioner also drew my attention to Annexure D series which are the statements of the complainant and other witnesses recorded by the Police at the time of investigation in this matter. The specific case in Annexure B complaint is that accused 1 and 2 meted out cruelty and harassment to the complainant. Later, on the accusation that the complainant is not beautiful upto the expectation of the 1[st] accused, he married the 3[rd] accused. It is her case in Annexure B complaint that the complainant was thrown out of matrimonial home and she had to take refuge in a nearby house along with her children. It is also contended that on 21.03.2012, all the accused came to the house wherein the complainant was living at that time, and attacked her again. She was criminally intimidated. The gold ornament worn by the child was taken by the 1[st] accused. Learned counsel for the petitioner drew my attention to the statement (recorded under Secton161 Cr.P.C) of the complainant 3 Crl.MC No.448/2013 stating that there was no occurrence happened on 21.03.2012 as narrated in the complaint. It is true that there is some incongruity in the matter. However, other allegations borne out from the complaint are repeated in the statement under Section 161 Cr.P.C. too. 5. Learned counsel for the complainant submitted that the entirety of the statements in Annexure D series would show that all these were prepared by the Police in one stretch and all the narrations are similarly worded. 6. Learned counsel for the petitioner relied on certain decisions of the Apex Court to canvass a position that rampant misuse of the provisions in Section 498A IPC has gained the attention of the Supreme Court. To buttress this proposition, decision in **Sushil Kumar Sharma v. Union of India and others ((2005) 6 SCC 281)** was pressed into service. Paragraph 19 reads as follows: _“The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial_ 4 Crl.MC No.448/2013 _measures can be taken to prevent abuse of the wellintentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provisions a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin's weapon. If cry of "wolf" is made too often as a prank assistance and protection may not be available when the actual "wolf" appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. ..............”_ Learned counsel for the petitioner further relied on the decision in **Preeti** **Gupta and another v. State of Jharkhand and another (2010 KHC 4571)** 5 Crl.MC No.448/2013 to reinforce the above contention. Relevant paragraph is extracted hereunder: _“ It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.”_ In **Preeti Gupta** 's case (supra), the Supreme Court held that the members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of the family is not ruined or demolished. Decision in **Bhaskar Lal Sharma and another v. Monica (2009 KHC 936)** is cited to argue the following proposition: _“For proving the offence under S.498A of the IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry, or any wilful conduct on the part of the accused 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. We do not find any such allegation has been made or otherwise can be found out so as to enable us to_ 6 Crl.MC No.448/2013 _arrive at an opinion that the appellants prima facie have committed such an offence.”_ 7. It is true that the petitioner is asked to face the second round of criminal trial in respect of similar allegations. However, the averments in the complaint and the allegations in Annexure D series statements cannot be simply brushed aside saying that all of them are false. Jurisdiction of this Court under Section 482 Cr.P.C. cannot be used to decide vexed questions of fact. However, considering the relationship between the parties and the fact that the petitioner is dragged to court for the second time, I make it clear that the learned Magistrate shall consider the plea of discharge, if any made by the petitioner, in accordance with law. It is also made clear that the learned Magistrate shall not insist for the presence of the accused at the time of that hearing. With the above observations, the petition is disposed of. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**