IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 Crl.MC.No. 3531 of 2009(F) ------------------------------------- (CRIME NO. 1096/09 OF KALADY POLICE STATION) .................... PETITIONER/DEFACATO COMPLAINANT: ----------------------------------------------------------- M.K.JOHNY S/O. KURIAN, AGED 45 YEARS, MECHERY HOUSE, VELLARAPPILLY, CHOVARAA SOUTH VILLAGE, ALUVA. BY ADV. MR.R.DIVAKARAN. RESPONDENTS/RESPONDENTS /STATE: ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KALADY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. GRACY, W/O. JOSE, AGED 40 YEARS, MATTEKADDAM HOUSE, EAST OKKAL, NEAR AUTOPURAM CHURCH, OKKAL P.O., PERUMBAVOOR. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/02/2010, THE COURT ON 19/02/2010 PASSED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- Cr. MC No.3531 of 2009-F ------------------------------------- Dated 19th February 2010 Order In this petition filed under S.482 of the Code of Criminal Procedure, the petitioner calls in question, the illegality of Annexure A5 order passed by the Court below. 2. The petitioner, who is the father of a maiden, filed Annexure A1 complaint before the first respondent, pointing out that his daughter, who was studying for Plus-two, has been whisked away by one Mr.Sebi. On the basis of the complaint, a crime was registered and Annexure A2 is the relevant F.I.R. The petitioner points out that Mr.Sebi and his daughter had taken a fancy for each other and on the date, on which his daughter was found missing, it was revealed that they had contacted each other over the mobile phone. The petitioner's grievance is that there was no proper enquiry conducted by the first respondent on the complaint filed by him. 3. The petitioner would point out that the second respondent in this petition had produced his daughter before the Judicial First Class Magistrate's Court, Perumbavoor on CRMC 3531/09 2 24.10.2009. The learned Magistrate had recorded the statement of the girl on that day as evident from Annexure A4. There she stated that she had been thrown out of her house by her parents and therefore, she had taken refuge in her uncle's house by name Jose. 4. The petitioner pointed out the contradiction in the statements given by his daughter before the Court and before the Police. In the statement before the Police, she stated that she had voluntarily gone away from the house. The petitioner submits that Sebi and his relatives are hand in glove to entice away the girl, one of whom is the so-called uncle of Sebi, namely Jose. He would say that the first respondent was quite unfriendly towards him whenever he went to enquire about the case. Finally, the first respondent filed a report before the learned Magistrate on 24.10.2009, pursuant to which, Annexure A5 order was passed. 5. It is alleged that the girl was produced before the Court without notice to the petitioner or his wife. It was so manipulated that her production was kept concealed from the parents of the girl. It is further alleged that the learned Magistrate, without applying his mind, allowed the minor girl to CRMC 3531/09 3 go along with the second respondent by Annexure A5 order. 6. The grievance of the petitioner is that the Police have not properly enquired into the issue and have filed a perfunctory report in the matter. It is further contended that the Court ought not have let the girl to go along with the second respondent and she should have been sent along with her parents. It is also stated that the Court below ought to have seen that proper investigation was conducted in the case. On the basis of the above allegations, the petition has been laid. The petitioner subsequently produced Annexure A9 order, which shows that the girl had gone along with Jose and Gracy. 7. The learned Public Prosecutor pointed out that the real facts are not as stated by the petitioner. According to him, as per the records, the girl was thrown away from her house and she had taken refuge in the house of her uncle Jose on 23.10.2009. Coming to know about the registration of a crime, the said person, namely Jose, along with his wife, Gracy produced the girl before the Police and subsequently before the JFCM Court, Perumbavoor. The statement of the girl was recorded. It is pointed out that in fact, as per the oral direction given by the Court, the 1st respondent had contacted the CRMC 3531/09 4 petitioner and his wife, who are the parents of the missing girl. But, they declined to take back the girl with them. Left with no option, the learned Magistrate let the girl go along with Jose and Gracy. Later on, she was lodged in a hostel, it is submitted. 8. One significant fact has to be noticed at the outset itself. Even going by the records, the girl was entrusted to Jose and Gracy on 24.10.2009. The claim of the petitioner is that he had no notice when the girl was produced before Court. This claim is controverted by the learned Public Prosecutor, who says that on instruction, the 1st respondent had contacted the petitioner and his wife on the very same of production of the girl before Court. But, they were disinclined to take the girl with them. Whatever that be, it is evident that at least on 24.10.2009, they came to know that the girl had been sent along with Jose and Gracy. It is rather surprising to note that till date, no petition whatsoever has been filed by the petitioner before the Court concerned, seeking custody of his daughter. 9. Going by the records, it is seen that on coming to know about the relationship between their daughter and Sebi, the petitioner and his wife had cautioned the girl and thereafter, treated towards her cruelly. Finally, as per the records, she was CRMC 3531/09 5 sent out of the house. 10. Which version is true, need not be considered in this proceedings. The fact, however,remains that the girl was not taken back by her parents and it is under these circumstances that the issue will have to be considered. 11. One may now have a look at the reliefs sought by the petitioner in this petition. They read as follows : “For the reasons stated above and other grounds, which may be urged at the time of arguments, it is most humbly prayed that this Hon'ble Court may be pleased to quash the order passed in Annexure A5 by Judicial First Class Magistrate Court-I, Perumbavoor in Crime No.1069/09 of Kalady Police Station and direct the first respondent for a proper investigation in the above crime and grant such other reliefs as this Honourable Court may deem fit to grant in the facts and circumstances of the case and allow this memorandum of Criminal Miscellaneous case.” 12. As already noticed, there has not been any attempt from the part of the petitioner to get custody of his daughter. It is now admitted by the learned counsel for the petitioner that presently, the girl is staying in a hostel and the petitioner claims to be meeting her expenses. There is no case for the petitioner that his daughter is unwilling to come along with him or that she wishes to remain in the hostel. Whether the expenses are being met by the petitioner or not, is not a CRMC 3531/09 6 question which should be determined by this Court at this point of time. One cannot overlook Annexure A5 order passed by the learned Magistrate on 24.10.2009. 13. The learned Magistrate has noticed that when the girl was brought before the learned Magistrate, the sworn statement of the girl was taken where she had stated that she was thrown out of the house by her parents and she had taken refuge in the house of her uncle, Jose. The learned Magistrate has subsequently noticed that the parents did not turn up to receive the girl and therefore, the Court had no option, but to send the girl along with Jose and Gracy, who were willing to take her for the time being. There is, in fact, a report filed on 24.10.2009 by the SI of Police of Police Station while producing the girl. It was on the basis of that report that Annexure A5 order was passed. 14. Even assuming for the argument sake, the petitioner was not aware of the production of the girl before Court, there can be no doubt regarding the fact that he, at least on the next day, came to know that his daughter has been produced before Court. Nothing prevented him from taking appropriate steps for bringing back her daughter to his home. CRMC 3531/09 7 Instead, he kept quiet. It is not necessary to go further in this matter. If as a matter of fact, the petitioner is inclined to take his daughter with him, he may seek appropriate orders from the Court below and in case he is dissatisfied with the investigation, then also, he may approach the appropriate forum in accordance with law. With the above observation, the Petition is disposed of. P.BHAVADASAN, JUDGE sta CRMC 3531/09 8