IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 Crl.MC.No. 2254 of 2008() ------------------------- C.P.52 OF 2008 OF JFCM, KODUNGALLUR PETITIONER(S): --------------------- BEENA, D/O.PRABHAKARAN, ARAYAMPARAMBIL HOUSE, VALAPPAD VILLAGE, DESOM, P.O. VALAPPAD BEACH, CHAVAKKD TALUK. BY ADV. SRI.RAJIT RESPONDENT(S): ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON 30/01/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2254 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2010. ORDER This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to have further proceedings in C.P.52 of 2008 pending before the Judicial Magistrate of First Class, Kodungallur quashed. 2. Petitioner is an accused in Crime No. 188 of 2007 of Valapad Police Station for having committed offence punishable under Sections 315 and 501 of Indian Penal Code. The case has been taken on file as C.P.52 of 2008 by the JFCM Court, Kodungallur. Prosecution was initiated on the basis of a complaint filed by the husband of the petitioner. 3. It is alleged that it is the second marriage of both the petitioner as well as her present husband. Her husband, Radhakrishnan, had a female child in the first marriage. After marriage they lived together. The defacto complainant had left for Gulf. When he returned home he Crl.M.C.2254/2008. 2 found that the petitioner was pregnant. She was left in her parental house by her husband. The complaint is that thereafter on some day prior to 11.11.2005 at some place at the instance of somebody, she had undergone abortion. She is also stated to have made derogatory remarks about the complainant's daughter in the first marriage. Final report was filed in respect of the offences punishable under Sections 315 and 501 IPC. Petitioner contended that no offences are made out on facts and that the present proceedings is an abuse of process of court and the allegations are totally vague and lead to no definite conclusion. Pointing out that she is being unnecessarily harassed, she prayed for quashing of Annexure B charge sheet and all further proceedings in C.P. 52 of 2008. 4. On going through the records it is clear that there is considerable substance in what the petitioner says. The allegation against the petitioner is that she had undergone an abortion and cause death of her child. It is interesting to note that the details Crl.M.C.2254/2008. 3 regarding the date, place etc of the abortion are conspicuously absent. It is said that some day prior to 11.11.2005, in some place at the instance of somebody the abortion was carried out. It is true that the prosecution has produced evidence to show that the petitioner had conceived. But strangely enough there is absolutely no evidence to show that whether she had undergone the abortion voluntarily or was at the instance of somebody. Thus the crucial aspect to attract offence under Section 315 IPC is conspicuously absent. The allegation regarding the commission of offence under Section 501 IPC is very weak. 5. The learned Public Prosecutor was unable to show that the prosecution had got any material to establish as to how the petitioner had lost her foetus. Learned Public Prosecutor was therefore unable to support the allegation against the petitioner of having committed offence under Section 315 IPC. 6. Considering the above aspects, it is felt that the claim of the petitioner that the trial would be a futile exercise Crl.M.C.2254/2008. 4 seems to be justifiable. Even otherwise, as long as the marriage subsists, it may not be proper to proceed with the case. It is true that the offences are not compoundable. However, the fact remains that no purpose will be served by the trial being conducted as there is no substance in the allegation against the petitioner. In the result, this petition is allowed and the charge sheet and all further proceedings in C.P. 52 of 2008 pending before the Judicial Magistrate of the First Class, Kodungallur is quashed and they shall stand dropped. P. BHAVADASAN, JUDGE sb. Crl.M.C.2254/2008. 5 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2254 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER 30.01.2010