Sobhana and Aswath v. State of Kerala and Reshma Krishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938 Crl.MC.No. 1505 of 2016 () --------------------------- AGAINST THE ORDER/JUDGMENT IN CC 65/2015 of C.J.M.,THODUPUZHA DATED CRIME NO. 308/2015 OF THODUPUZHA POLICE STATION , IDUKKI PETITIONER(S)/PETITIONERS:ACCUSED NOS. 2 & 3: -------------------------------------------- 1. SOBHANA, AGED 58 YEARS W/O. VASUDEVAN, RATHEESH BHAVAN, KANJIRAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. ASWATH, AGED 28 YEARS S/O. VASUDEVAN, RATHEESH BHAVAN, KANJIRAMATTAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.A.RAJESH RESPONDENT(S)/RESPONDENTS:COMPLAINANT & DEFACTO COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031, ERNAKULAM. 2. RESHMA KRISHNAN, AGED 26 YEARS D/O. KRISHNANKUTTY NAIR, CHIRAKKAL, EZHIKKARA P.O., ERNAKULAM, PIN-683513. R2 BY ADV. SRI.S.RAJEEV R2 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN R2 BY ADV. SRI.V.VINAY R BY PUBLIC PROSECUTOR SRI. E.C.BINEESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CONTD.. ## :2: Crl.MC.No. 1505 of 2016 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE A- THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 308 OF 2015, DATED 29-4-2015. ANNEXURE B- THE CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT IN CRIME NO.308 OF 2015 DATED 25-2-2015. ANNEXURE C- THE CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 308 OF 2015 DATED 25-2-2015. ANNEXURE D- THE TRUE COPY OF THE ORDER IN CRL.M.C. 126 OF 2015 OF THE HON'BLE SESSIONS COURT, THODUPUZHA DATED 31-3-2015. ANNEXURE E- THE TRUE COPY OF THE CRIMINAL M.C.42 OF 2015 FILED BEFORE THE HON'BLE J.F.C.M.COURT, PARAVOOR. RESPONDENT(S)' EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 1505 of 2016 - - - - - - - - - - - - - - - - Dated 6[th] February, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.Seeking to have the proceedings in C.C. No 1505 of 2016 quashed wherein the petitioners stands arrayed as accused Nos. 2 and 3 , this petition is filed under section 482 of the Code of Criminal Procedure. The aforesaid case has arisen on the strength of a complaint filed by the 2[nd] respondent who is the daughter-in-law of the 1[st] petitioner herein. The 1[st] accused in the aforesaid case is the husband of the 2[nd] respondent and the 3[rd] accused is the younger brother of the 1[st] accused. 2. The allegations in the complaint filed by the 2[nd] respondent are that the marriage between the 1[st] accused and the 2[nd] respondent/defacto complainant was solemnized on 26.01.2015 at Paravur. The marriage was fixed while the Crl.M.C. No. 1505 of 2016 2 1[st] accused was working abroad. The bridegroom had no occasion to see the bride prior to the marriage. From the next day of marriage, the 1[st] accused started harassing the 2[nd] respondent stating that she was not fair and that he would not have agreed to the marriage if he had occasion to meet the 2[nd] respondent prior to the marriage. Specific allegation levelled against the petitioners herein is that they had subjected the 2nd respondent to mental and physical cruelty. According to the 2nd respondent, at the time of marriage 26 Sovereigns of gold and Rs 4 lakh were handed over to the 1st accused by her parents. When the 2[nd] respondent was mentally and physically harassed she had informed the same to her parents and near relatives and they had intervened on numerous occasions. It is further alleged that on 24/02/2015 at 4 PM the 1st accused physically manhandled the 2[nd] respondent Crl.M.C. No. 1505 of 2016 3 demanding dowry. The thaly chain worn by her was snatched and she was pulling down on the ground. She sustained injuries on her knee. She immediately informed her family members who came to her rescue and admitted her in the Taluk headquarters hospital at Thodupuzha. While undergoing treatment in the Hospital, she had given a statement based on which the crime was registered. It is alleged that the accused had harassed her with a view to coerce her and her relatives to accede to their unlawful demand for property and valuable security. 3.The learned counsel appearing for the petitioners submits that most of the allegations in the complaint relate to the 1[st] accused and insofar as the petitioners herein are concerned, only vague allegations are raised. According to the learned counsel the petitioners have been arrayed as accused solely to harass them. It is further urged that Crl.M.C. No. 1505 of 2016 4 even if the allegations in the complaint were read as a whole and accepted as true, no case has been made out against the petitioners for the offence under section 498A , 323 read with section 34 of the IPC. Referring to the decision of the Apex Court in **Preethi Gupta & anr. v. State of Jharkhand and anr.** [2010 (7) SCC 667] **,** the learned counsel would submit that the Apex Court had occasion to observe that there is tendency to implicate the near relatives of the husband in matrimonial matters. According to the learned counsel the continuance of the proceedings as against the petitioners is clearly an abuse of process and prays that necessary directions be issued to quash the same. 4.The learned counsel appearing for the 2[nd] respondent on the other hand took this Court through the statement of the 2[nd] respondent and the materials accompanying the Crl.M.C. No. 1505 of 2016 5 - final report and submitted that when the offence is prima facie disclosed against the petitioners, this court will not be justified in assessing the materials and in considering its truthfulness. It is submitted that the 2[nd] respondent had lived in the matrimonial home only for a short period and there are ample materials to show that she was subjected to cruelty and harassment in connection with the demand for dowry. - 5.The learned Public Prosecutor on instructions submits that this is not a fit case where this court will be justified in quashing the proceedings under Section 482 of the Code of Criminal Procedure. - 6.I have considered the submissions advanced. I have gone through the materials on record. - 7.The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be Crl.M.C. No. 1505 of 2016 6 applied by the Court is, as to whether uncontroverted allegations as made in the complaint establish the offence. This Court has to refrain from analysing the materials which are yet to be adduced and seen in their true perspective. It is trite that jurisdiction under Section 482 Cr.P.C. which saves the inherent power of the High court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction this Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. The only consideration has to be as to whether the allegations set out in the complaint or the charge-sheet do not in law constitute or spell-out Crl.M.C. No. 1505 of 2016 7 any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not. - 8.From the perusal of the materials on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the petitioners. All the submissions made at the Bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 of the Code. At this stage only prima facie case is to be seen in the light of the law laid down by Apex Court . - 9.Having regard to the above, I am of the view that this Court will not be justified in invoking powers under Section 482 of the Code to quash the proceedings at this stage. - 10.However, it is submitted that the 1[st] petitioner is aged and ailing. The learned counsel submits that directions be Crl.M.C. No. 1505 of 2016 8 issued to the learned Magistrate to consider the application for permanent exemption on the basis of the directions issued by this Court in **Raju T.P. v. State of Kerala** [2009(3) KHC 14]. Having regard to the above, the 1[st] petitioner will be at liberty to file an application seeking permanent exemption before the learned Magistrate. If such an application is filed, the learned Magistrate shall consider the same and pass appropriate orders. This petition is disposed off. ## **Sd/-** **RAJA VIJAYARAGHAVAN.V., JUDGE** SKS //TRUE COPY// P.A. TO JUDGE