Sunil L.S. v. State of Kerala and Akhila A.S.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943** **CRL.MC NO. 5742 OF 2018** **AGAINST THE ORDER IN CC 51/2015 OF JUDICIAL MAGISTRATE OF FIRST** **CLASS-II, NEYYATTINKARA, THIRUVANANTHAPURAM CRIME NO. 591 OF 2014 OF POZHIYOOR POLICE STATION** ## **PETITIONER/ACCUSED:** SUNIL L.S., AGED 35 YEARS S/O.LAKSHMANAN, MARUTHAMKUZHIVILA VEEDU, KAKKAVILA.P.O., NEYYATTINKARA, THIRUVANANTHAPURAM, KERALA - 695506. BY ADVS. SRI. K. SHAJ SRI. RENJITH GEORGE SRI. ARUN CHAND, SRI. C. IJLAL ## **RESPONDENTS/STATE & CW1:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 AKHILA.A.S., D/O.ALPHONSA, SAJU BHAVAN, MAVILAKKADAVU, VENKADAMBU.P.O., KULATHOOR, THIRUVANANTHAPURAM, KERALA-695506. BY ADV SRI.BINDU SREEKUMAR ## **OTHER PRESENT:** AJITH MURALI- P.P THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON 10.09.2021 PASSED THE FOLLOWING: Crl.M.C.5742/2018 2 ## ORDER Dated this the 10[th] day of September, 2021 This application is filed under Section 482 of the Code of Criminal Procedure by the sole accused for quashing the final report and all further proceedings pursuant to it in Crime No. 591 of 2014 of Pozhiyoor Police Station, Thiruvananthapuram District registered for the offence punishable under Section 498A of the Indian Penal Code. 2. The necessary facts for the disposal of the present application in short are as follows: The petitioner is a handicapped person who is employed in Sree Chitra Tirunal Institute of Medical Sciences and Technology. He has married the defacto complainant, the 2[nd] respondent, as per the custom of their community on 10.07.2013 and they resided together as husband and wife. While she was pregnant, following the custom, she was Crl.M.C.5742/2018 3 taken to her house on 19.01.2014 for delivery and she gave birth to a child on 21.03.2014. While so, on 02.10.2014, she preferred a complaint against this petitioner, his parents and sister alleging that they have treated her with cruelty. On her statement, FIR No. 591 of 2014 was registered against this petitioner and three others. Investigation was conducted by the investigating agency and submitted final report on 07.11.2014 deleting all the accused except this petitioner from the party array and as such the case is pending before the Judicial First Class Magistrate-II, Neyyattinkara as C.C. No. 51 of 2015 against this petitioner alone. 3. It is submitted by the learned counsel for the petitioner that the petitioner has not committed any offence as alleged by the defacto complainant, and no offence under Section 498A of the Indian Penal Code is attracted and hence this application to quash all further proceedings in C.C. No. 51 of 2015. Crl.M.C.5742/2018 4 4. Though the defacto complainant was served with a notice, she did not file any counter affidavit opposing the application. But argument was advanced from the side of the defacto complainant opposing this application to quash the final report. 5. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant as well the learned Public Prosecutor. 6. Admittedly, the marriage of the petitioner and the defacto complainant was solemnized as per the custom of their community on 10.07.2013 and they lived together as husband and wife at his residence. She became pregnant and she was taken to her parental house for delivery on 19.01.2014. She gave birth to a child on 21.03.2014. Baptism of the child was conducted on 03.05.2014. But she never returned to her matrimonial home after the birth of the child. Later, filed M.C. No. 32 of 2016 before the Family Crl.M.C.5742/2018 5 Court, Thiruvananthapuram claiming maintenance and an interim order was passed directing the petitioner herein to pay maintenance allowance to the defacto complainant and her child and certain amount has been paid by the petitioner to the 2[nd] respondent. 7. So also, the petitioner has approached this court with this Crl.M.C. No.5742 of 2018 when an official notice was issued stating that he was not entitled for declaration of his probation because of the pendency of this case. The District Police Chief had also submitted a report to his employer regarding the pendency of the case and further reported that as he is an accused in Crime No. 591 of 2014, he is not suitable for the post. The said order was stayed by this court after hearing both sides. Meanwhile, he was also directed to pay 50% of the unpaid amount ordered as maintenance allowance in M.C. No. 32 of 2016. These facts are not in dispute. Crl.M.C.5742/2018 6 8. Before going into the details, it is necessary to reiterate Section 498A of Indian Penal Code, which reads as follows: “ **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 women, 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 purpose 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.” 9. Here, it is pertinent to note that the FIS of the defacto complainant will not reveal any offence of physical torture against this petitioner. In fact, the allegation was that the mother of this petitioner has locked her in her bed Crl.M.C.5742/2018 7 room on one day and only after this petitioner returned from his office, she was set free by him. So, the allegation was against the mother of the petitioner. But, it is significant to note that though there was such an allegation, on investigation, the investigating agency found that there is no specific case against the in-laws of the defacto complainant and the allegations raised against them are false so, they were deleted from the array of accused and as such the petitioner is the sole accused in the alleged crime. 10. Of course, if there is harassment on the side of the petitioner with a view to coerce her to meet the unlawful demand for any property or valuable security, definitely an offence under Section 498A of IPC is attracted. As admitted by the parties, after the marriage, her 16 sovereigns of gold ornaments were taken by the petitioner and sold the same in a jewellery shop. Annexure A3 is the purchase bill dated 15.08.2013. So, her gold ornaments were taken by the petitioner and sold the same. But, Annexure A4, a sale deed Crl.M.C.5742/2018 8 dated 17.10.2013 would indicate that he has alienated 5 cents of property owned by him in lieu of the money he collected by sale of the ornaments which belonged to the defacto complainant. Therefore, as the value of her gold ornaments, a property has been transferred in her name and there is specific recital in the sale deed to the effect that the sale consideration is adjusted towards the value of the gold ornaments taken by him. It is further to be noted that the defacto complainant has returned to her house on 19.01.2014 but that was in connection with her delivery. She has no case that she has been sent back to her house by the petitioner in order to coerce her to bring more money from her house. But, in fact, as per the custom, she was taken to her house for delivery and she delivered the child on 21.03.2014. So also, after the delivery, the parties together conducted Baptism ceremony of the child on 03.05.2014. So, during that period also, she was not having an allegation that she was physically or mentally tortured Crl.M.C.5742/2018 9 by this petitioner. The FIR was lodged by her on 02.10.2014. But during that time also, it is not disputed that she continued to reside with her own parents and she never returned to the residence of the petitioner. Of course, she has approached the Family Court with a petition for maintenance and the same has been ordered against the petitioner and he is remitting the same. The balance amount due to her on account of the arrears of maintenance allowance was also paid during the pendency of this application. I have carefully considered the rival contentions so as to verify whether sufficient materials to attract an offence under section 498A are available. It is pertinent to note that no specific allegation has been raised pointing out any specific instance to the effect she was subjected to any harassment, mental or physical, so as to attract an offence under Section 498A of IPC. FIR is seen lodged by making extremely vague and general allegations. If only there are materials to show that a case has been Crl.M.C.5742/2018 10 made out by the defacto complainant to the effect that she was subjected to harassment with a view to coerce her for money and there was unlawful demand from the side of the petitioner for more money and property or valuable security, an offence under Section 498A of IPC is attracted. Here, the materials gathered from the deposition of the defacto complainant by the police to register the FIR and further investigation will not show that she was subjected to physical torture. But her father had given a statement that she was subjected to physical torture also. But, no medical records are available to substantiate the said contention and the defacto complainant has no such case. There is absolutely no allegation of physical torture from the side of the defacto complainant though she has a vague statement that there was sexual violence from his side. But the said allegation is also not narrated by her with clarity and there is only a vague allegation about such a treatment from the side of this petitioner. So also, regarding the allegation of Crl.M.C.5742/2018 11 mental torture, there is no specific allegation against the petitioner that he harassed or maltreated her because of non-fulfillment of illegal demand of money. The allegations must be specific and should not be of general nature. 11. From the records made available, even if the allegations are taken as proved, no case is made out to constitute an offence of cruelty towards her with illegal demand for money or property. Without a prima facie case of harassment or unlawful demand so as to coerce her to bring money from her house, it is not possible to infer that the defacto complainant has made out a case under Section 498A of IPC against this petitioner so as to go for trial. In matrimonial cases the Courts have to be very cautious and without solid and clear allegation, nobody should be compelled to undergo the rigmarole of a criminal trial. 12. It is pertinent to note that this petitioner is a handicapped person and Annexure A1 is the disability certificate issued to him. He is employed as a Technician in Crl.M.C.5742/2018 **==> picture [13 x 9] intentionally omitted <==** Sree Chitra Tirunal Institute of Medical Sciences and Technology and even his declaration of probation was withheld because of the registration of this crime and by the interference of this court, the proceedings have been stayed and now he is continuing in service in the present post. When all the records available, mainly, the FIS as well the further statement of the defacto complainant is evaluated closely, it could be seen that the essential ingredients so as to attract an offence under Section 498A of the IPC or to prosecute the petitioner, has not been made out by the defacto complainant against the petitioner. When the complaint and charge sheet did not disclose any offence and is found frivolous and vexatious, the power under Section 482 of the Code of Criminal Procedure could be exercised as the purpose and object is advancement of Justice. [See **Shakson Belthissor v. State of Kerala** ((2009) 14 SCC 466) and **Kartik Chandra Majee Alias Kartik Chand Majee v. State of Jharkhand** ((2018) 13 SCC 747)]. The Crl.M.C.5742/2018 13 pendency of the case before the Family Court is not sufficient to infer that she was mentally or physically harassed by the petitioner. Such being the case, I think that there is merit in the argument advanced by the learned counsel for the petitioner that sufficient materials are not available to proceed against the petitioner and if trial is continued, it will turn as an abuse of the process of court and also as mere waste of valuable time of the trial court. 13. It is well settled that the powers under Section 482 of the Code of Criminal Procedure must be exercised sparingly, carefully and with great caution. Only if it is convinced that manifest injustice will be caused in proceeding with the case and finally it will turn as mere abuse of the process of the Court, such power can be exercised. [See **Gian Singh v. State of Punjab** ((2012) 10 SCC 303)] 14. In **Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur v. State of Gujarat** ((2017) 9 SCC Crl.M.C.5742/2018 14 # 641) the Apex Court has elaborately considered the scope and ambit of Section 482 of Cr.P.C. again and summarized ## the propositions as follows: "16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; 16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. 16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; 16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be Crl.M.C.5742/2018 15 exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court; 16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; 16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; 16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; 16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, Crl.M.C.5742/2018 ## 16 partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; 16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance." 15. Here, sufficient materials are not available as revealed from the statement of the defacto complainant and materials collected for continuation of proceedings under the final report submitted against the petitioner and if permitted Crl.M.C.5742/2018 17 to continue, it is explicitly clear that it will turn as an abuse of the process of court leading to injustice. Therefore, I find that there is justification to hold that the petitioner is entitled to get the relief as sought for by him. Therefore, this Crl.M.C. is allowed and all further proceedings in C.C. No. 51 of 2015 pending before the Judicial First Class Magistrate Court-II, Neyyattinkara, arising from Crime No. 591 of 2014 of Pozhiyoor Police Station will stand quashed as prayed for. Sd/- SHIRCY V JUDGE sb Crl.M.C.5742/2018 18 ## **APPENDIX OF CRL.MC 5742/2018** |PETITIONER ANNEXURE|| |---|---| |ANNEXURE P1|A PHOTOCOPY OF THE DISABILITY CERTIFICATE OF| ||THE PETITIONER DATED 12.12.2006, ISSUED BY THE| ||MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM.| |ANNEXURE P2|A PHOTOCOPY OF THE FINAL REPORT IN| ||C.C.NO.51/2015 ON THE FILE OF JUDICIAL FIRST| ||CLASS MAGISTRATE COURT-2, NEYATTINKARA ARISING| ||OUT OF CRIME NO.591/2014 OF POZHIYOOR POLICE| ||STATION.| |ANNEXURE P3|A PHOTOCOPY OF THE PURCHASE BILL DATED| ||15.8.2013 OF THE BHIMA JEWELLERY TRIVANDRUM.| |ANNEXURE P4|A PHOTOCOPY OF THE SALE DEED AGREEMENT, DATED| ||17.10.2013, VIDES NO.1860/2013 WHICH SHOWS THE| ||TRANSFERRING OF 5 CENTS OF THE PROPERTY OF THE| ||PETITIONER TO THE SECOND RESPONDENT.| |ANNEXURE P5|A PHOTOCOPY OF THE PLACEMENT ORDER OF THE| ||PETITIONER DATED 19.9.2017 - POSTED AS ANIMAL| ||HANDLER - A, IN SREE CHITRA TIRUNAL INSTITUTE| ||FOR MEDICAL SCIENCES AND TECHNOLOGY,| ||THIRUVANANTHAPURAM.| |ANNEXURE P6|A PHOTOCOPY OF THE ATTESTATION FORM DATED| ||18.9.2017 OF THE SREE CHITRA TIRUNAL INSTITUTE| ||FOR MEDICAL SCIENCE AND TECHNOLOGY| ||THIRUVANANTHAPURAM.| |ANNEXURE P7|A PHOTOCOPY OF ADVERSE REPORT OF THE CHARACTER| ||AND ANTECEDENTS OF THE PETITIONER DATED| ||9.2.2018, FROM THE OFFICE OF THE DISTRICT| ||POLICE CHIEF VIDE NO.TR/83/SB/VR/C/2018.|