IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Crl.MC.No. 1061 of 2010() ------------------------------------- (CRIME NO.159/2009 OF PONNANI POICE STATION) PETITIONER(S): ACCUSED NO.3 TO 5: --------------------------------------------------------- 1. KAYYUMMA, AGED 48, W/O.AYOOB, MAYINTAKATH HOUSE, NEAR POLICE STATION, PONNANI SOUTH, MALAPPURAM. 2. SALEENA, AGED 27, W/O.K.P.SHAJAHAN, MAYINTAKATH HOUSE, NEAR POLICE STATION, PONNANI SOUTH, MALAPPURAM. 3. NOORJAHAN, AGED 22, D/O.AYOOB, MAYINTAKATH HOUSE, NEAR POLICE STATION, PONNANI SOUTH, MALAPPURAM. BY ADVS. SMT.AYSHA YOUSEFF, SMT.MOLLY JACOB, SMT.RABIA BEEGAM T.K., SRI.JOBI.A.THAMPI, SMT.M.KABANI DINESH. RESPONDENT(S): DE-FACTO COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. FASEELA, AGED 21, D/O.HASSAINAR, ALIKUTTINTE HOUSE, PUTHU PONNANI, NEAR BEEVI JARAM, PONNANI SOUTH, MALAPPURAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADVS. SRI.C.V.MANUVILSAN, SRI.P.G.SURESH. R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/09/2010 ALONG WITH CRMC NO. 1819 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------------------- CRL.M.C.NO.1061 & 1819 OF 2010 ----------------------------------------------------- Dated 13th September, 2010 O R D E R Petitioners in Crl.M.C.1061/2010 are accused 3 to 5 who are mother and sisters of the first accused. Petitioners in Crl.M.C.1819/2010 are accused 1 and 2. Second petitioner is the father of the first petitioner. First respondent in Crl.M.C.1061/2010 who is the second respondent in Crl.M.C.1819/2010 is the wife of the first accused. First accused married second respondent on 15/8/2007 and since then they have been living as husband and wife. Second respondent gave birth to a baby girl. Thereafter, she has been living at her house. First accused husband sent Annexure-1 notice to the wife on 23/3/2009 Crmc 1061 & 1819/10 2 demanding restitution of conjugal rights. Wife thereafter lodged Annexure-2 complaint before Judicial First Class Magistrate's Court, Ponnani alleging that husband and in-laws committed offence under Section 498A and 406 of Indian Penal Code. Complaint was sent for investigation under Section 156(3) of Code of Criminal Procedure. It was being investigated on registering Annexure-3 FIR in crime No.159/2009 for the offences under Sections 498A and 406 read with Section 34 of Indian Penal Code. Additional Sub Inspector of Police, Ponnani after investigation submitted Annexure-4 final report which was taken cognizance by the learned Magistrate as C.C.255/2009. These petitions are filed to quash the proceedings against the petitioners contending that ingredients of the offences Crmc 1061 & 1819/10 3 are not attracted and mother-in-law and sisters-in-law are falsely implicated and hence continuation of the proceedings is only an abuse of process of the Court. On the basis of the allegations this Court called for a report from the Magistrate as to whether charge has been framed in C.C.255/2009. Report submitted by the Magistrate shows that in view of the order of stay granted in Crl.M.C.1061/2010, only first accused appeared and he filed an application under Section 205 of Code of Criminal Procedure to dispense with his presence, as he has to go abroad for employment. Learned Magistrate allowed that petition and framed charge as against first accused. Charge against the other accused is not so far framed. 2. Learned counsel appearing for the Crmc 1061 & 1819/10 4 petitioners, the first respondent/second respondent in the respective cases and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the petitioners is that Annexure-1 complaint does not make out the ingredients of the offence as against petitioners in Crl.M.C.1061/2010 and the sisters and mother of the husband are falsely implicated and hence continuation of the proceedings against them is only an abuse of process of the Court. Learned Public Prosecutor pointed out that statement of the witness recorded under Section 161 of Code of Criminal Procedure reveals the ingredients of the offence. Petitioners have not made available the statement relied on by the prosecution. Considering the entire aspects of the case, I Crmc 1061 & 1819/10 5 find that it is for the petitioners to raise all the contentions before the learned Magistrate and seek an order of discharge. Hence petitioners in Crl.M.C.1061/2010 are at liberty to approach the learned Magistrate and show that on the materials relied on by the prosecution, ingredients of the offence as against them is not made out. Only apprehension could be the necessity of the petitioners to be present before the Court for that purpose. But that difficulty could be avoided by directing the learned Magistrate to dispense with the presence of the petitioners, for the purpose of seeking an order under Section 239 of Code of Criminal Procedure on the petitioners filing a petition under Section 205 of Code of Criminal Procedure. It is made clear that if petitioners file an application under Section 205 of Code Crmc 1061 & 1819/10 6 of Criminal Procedure to dispense with their presence, so as to seek an order of discharge under Section 239 of Code of Criminal Procedure, learned Magistrate not to insist for the presence of petitioners and shall consider the question whether there is any material warranting framing of charge against the petitioners and if not they are to be discharged. With liberty to move the learned Magistrate for discharge under Section 239 of Code of Criminal Procedure Crl.M.C.1061/2010 is disposed. 4. Report submitted by learned Magistrate shows that charge against the first petitioner in Crl.M.C.1819/2010 has already been framed. Complaint discloses the offence alleged as against first accused. Therefore, case against the first petitioner/first accused Crmc 1061 & 1819/10 7 cannot be quashed. As charge is not framed against second petitioner/second accused, he is also at liberty to seek an order of discharge under Section 239 of Code of Criminal Procedure. If second petitioner files an application to dispense with his presence under Section 205 of Code of Criminal Procedure, learned Magistrate not to insist for the presence of second petitioner for hearing the claim for discharge. Second petitioner is at liberty to raise all the contentions raised herein before the learned Magistrate and seek an order of discharge. Crl.M.C.1819/2010 is also disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.