Suhara v. Muhammed Jaleel and State of Kerala

Crl.M.C.No.4659/2020 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943_ ## _CRL.MC NO. 4659 OF 2020_ _AGAINST THE ORDER/JUDGMENT IN CC 324/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM, PALAKKAD PETITIONER/ACCUSED:_ _SUHARA, AGED 45 YEARS, W/O.ABDUL RASHEED, KILAYIL HOUSE, MANNURKODE (P.O), OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 502._ _BY ADV NIREESH MATHEW_ ## _RESPONDENT/DE FACTO COMPLAINANT & STATE:_ _1 MUHAMMED JALEEL, AGED 39 YEARS, S/O.AYAMU, KADAYAN KADAN HOUSE, VAZHANKADA (P.O), MALAPPURAM DISTRICT, PIN-679 357._ - _2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031._ _BY ADV SRI.G.SREEKUMAR (CHELUR)_ _THIS CRIMINAL MISC.CASE HAVING COME UP FOR ADMISSION ON_ _25.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.4659/2020 2 ## **O R D E R** The petitioner is the accused in crime No.141 of 2020 of Ottappalam Police Station, which was registered against her alleging commission of offences punishable under Section 324 IPC and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short JJ Act). 2. The facts of the case is as follows: The daughter of the petitioner was married to the 1[st] respondent and in the said wedlock a female child namely, Fathimathul Jasla was born. The daughter of the petitioner died at the matrimonial house and there are some litigations and disputes going on in connection with the death of her daughter in the residence of the 2[nd] respondent. O.P No.608 of 2015 was filed by the petitioner before Family Court, Ottappalam seeking custody of the child under Section 7(1)(g) and Section 10 of the Family Court Act, 1984. In the said original petition interim order was passed granting visitorial rights to the petitioner, to meet the child, whose regular custody is with the 1[st] respondent herein. As per which, the 1[st] respondent, was directed to produce the child Crl.M.C.No.4659/2020 3 before the Family Court once in a month in the court premises at 10 am, so as to enable the petitioner to have interaction with the child till 4 pm on that day. In compliance of the said direction, on 15.02.2020 the child was brought to the court and temporary custody was granted to the petitioner. Later, at 4 pm the custody of the child was returned to the Sheristadar of the Family Court who, in turn released the child to the 1[st] respondent herein. However, it is learned later that a complaint was registered by the 1[st] respondent to the effect that the petitioner herein caused injuries in the ear of the child by using ear buds. 3. Annexure-A FIR was registered by the police on the basis of the said complaint and after completing the investigation, Annexure-B final report was submitted for the offences mentioned above. The specific case of the petitioner is that no offence is made out as against the petitioner, even if the entire allegations are accepted for its face value and he seeks to quash the proceedings invoking powers of this Court under Section 482 Cr.P.C. Crl.M.C.No.4659/2020 4 4. Heard Sri.Nireesh Mathew, learned counsel for the petitioner and Sri.G.Sreekumar Chelur, learned counsel for the 1[st] respondent. 5. The learned counsel for the petitioner contends that as per the stipulations contained in Section 324 IPC an ear bud cannot be treated as a weapon so as to attract the offence punishable. He also brought my attention to the statement given by the witnesses, who are the Sheristadar of the Family Court and also the other staff of the court, wherein it is mentioned that while the child was returned to the Sheristadar by the petitioner herein, no injuries were noted. Only when the 1[st] respondent came back with the allegation as contended above, they noticed some stains in the ear of the child which looked like that of blood. However, it is stated by them that there were no visible injuries. In such circumstances, petitioner is seeking for an order quashing the proceedings. 6. On the other hand, the learned counsel for the 2[nd] respondent would contend that, the contentions put forward by the learned counsel for the petitioner cannot be considered in a proceedings under Section 482 Cr.P.C as essentially those are Crl.M.C.No.4659/2020 5 matters to be decided on evidence. He also referred to various kinds of disputes pending between the parties including the criminal proceedings falsely initiated against the 1[st] respondent for serious offences of Protection of Children from Sexual Offences (POCSO) Act, at the instance of the petitioner herein. In such circumstances, he prays for dismissal of the Crl.M.C. 7. The crucial aspect to be considered is whether Section 324 IPC is attracted. Section 324 IPC reads as follows: “324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” Crl.M.C.No.4659/2020 6 Stipulations contained in Section 324 IPC, specifically contemplates the nature of the weapons so as to attract the aforesaid offence. Going by the said description, the weapon itself described as an instrument for shooting, stabbing or cutting, or any instrument which, if used as weapon of offence, is likely to cause death. In this case the allegation is that the petitioner caused injury to her grant child by using an ear bud. Ear bud is intended for cleaning the ear and under no stretch of imagination, it can be treated as a weapon, which comes within the description of weapon as mentioned under Section 324 IPC. 8. The other offence alleged is under Section 75 of the JJ Act. Section 75 of the JJ Act reads as follows: “Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both: Provided that in case it is found that such abandonment of the child by the biological parents Crl.M.C.No.4659/2020 7 is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases: Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees: Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees.” 9. In order to attract the aforesaid offence, the child must have been subjected to assault, abuse or expose by the person who was having actual charge of control over the child. In this case the materials available on record do not contain any of the allegations so as to attract the aforesaid offence as well. Child was in the custody of the petitioner at the relevant time and Crl.M.C.No.4659/2020 8 through out such time, the petitioner and the child were in the court premises. There is no evidence including medical evidence to establish that the child has sustained any injury, or subjected to assault as above. 10. Apart from the above, in order to attribute culpability upon a person, there must be a criminal intention on the part of the accused, while committing the act alleged. In this case, from the materials available on record, the same cannot be found. This is because, the alleged victim is the granddaughter of the petitioner whose temporary custody was provided by the court as per various orders. Admittedly, there are serious disputes pending between the petitioner and the 1[st] respondent. The place of occurrence of incident is stated to be within the court premises. It is also discernible from the records, at the time when the child was returned by the petitioner to the Sheristadar, no injuries were noted. The staff of the court also could not notice any injury on the child. From the analysis of the entire facts and circumstances, no prudent person can come to a conclusion that a person would make an attempt to cause an injury to his/her grand child, by using an ear bud as a weapon. Crl.M.C.No.4659/2020 9 11. In State of **Haryana v. Ch. Bhajan Lal ( 1992 Supp** **(1) SCC 335)** , the Honourable Supreme Court laid down various guidelines for invoking the powers under section 482 of Cr.P.C. As per the said guidelines, one of the circumstances under which the power can be invoked, is as extracted here under: “Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.” After referring the aforesaid guidelines, the Honourable Supreme Court, observed in a recent judgment in **Mahendra v.State of Karnataka (2016 (6) KLT Online 1128 SC)** as follows: “Based on the above precedent, the High Court while exercising its power under section 482 of the Cr.P.C to quash the FIR instituted against the respondent should have applied the following two tests: I) whether the allegations made in the complaint, prima facie constitute an offence; ii) whether the allegations are so improbable that a prudent man would not arrive at the conclusion Crl.M.C.No.4659/2020 10 that there is sufficient ground to proceed with the complaint.” 12. The facts and circumstances in this case reveal that, it is a case comes within the above categories. Thus, when all these aspects are taken into consideration and also the trivial nature of the allegations raised, the only conclusion possible is that this is a fit case in which powers of this Court under Section 482 Cr.P.C can be invoked. Accordingly, I allow this Crl.M.C and quash Annexure-A FIR and Annexure-B final report in C.C.No.324 of 2020 on the file of the Judicial First Class Magistrate Court, Ottappalam, which arises from Crime No 141/2020 of Ottapalam Police Station and all further proceedings pursuant thereto. Sd/- ## **ZIYAD RAHMAN A.A.** **JUDGE** DG/25.11.21 Crl.M.C.No.4659/2020 11 ## _APPENDIX OF CRL.MC 4659/2020_ _PETITIONER ANNEXURE ANNEXURE A TRUE PHOTOCOPY OF THE FIR IN CRIME NO. 141/2020 OF OTTAPALAM POLICE STATION DATED 27.02.2020. ANNEXURE B TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO. 141/2020 OF OTTAPALAM POLICE STATION DATED 13.06.2020._