IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 26TH JUNE, 2008 / 5TH ASHADHA, 1930 Crl.MC.No. 1021 of 2004(C) ------------------------------- (CC.123/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA) .................... PETITIONERS: (ACCUSED): -------------------------------- 1. CHANDRAN, S/O. CHELLAN NADAR, NELLIMOOD VENGANINNA VADAKKETHATTU VEEDU, KAZHAVOOR DESOM, KANJIRAMKULAM VILLAGE. 2. CHELLAN NADAR, NELLIMOOD VENGANINNA VADAKKETHATTU VEEDU, KAZHAVOOR DESOM, KANJIRAMKULAM VILLAGE. 3. SREEKUMARI, D/O. CHELLAN NADAR, NELLIMOOD VENGANINNA VADAKKETHATTU VEEDU, KAZHAVOOR DESOM, KANJIRAMKULAM VILLAGE. 4. GIRIJA, D/O. CHELLAN NADAR, NELLIMOOD VENGANINNA VADAKKETHATTU VEEDU, KAZHAVOOR DESOM, KANJIRAMKULAM VILLAGE. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: (COMPLAINANT & STATE): ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KANJIRAMKULAM. 3. S.PREMA, D/O. SARASWATHY, CHIRATHALAVILAKATHU VEEDU, THALAYAL, BALARAMAPURAM VCBY PUBLIC PROSECUTOR BY ADV. SRI. BIJU BALAKRISHNAN FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.06.2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 1021 of 2004 - C --------------------------------------------- Dated this the 26th day of June, 2008 O R D E R The petitioners, who are accused in C.C.No.123 of 2003 of the Judicial First Class Magistrate Court-III, Neyyattinkara, now approached before this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash Annexure A1 charge sheet and also all further proceedings in the above case. The offence alleged against the petitioners in the above case is under Section 498-A of the Indian Penal Code. Annexure A1 charge sheet was filed by the Kanjiramkulam Police after investigation in Crime No.199 of 2002 of the said Police Station which was registered therein on receiving a private complaint filed by the third respondent herein before the Judicial First Class Magistrate Court, Neyyattinkara. According to the Police, on investigation, they found that the petitioners herein are liable to be prosecuted under Section 498A of the I.P.C. and hence they filed Annexure A1 charge sheet before the court Crl.M.C. NO. 1021 of 2004 :-2-: below. Accordingly, the court took cognizance and instituted C.C.No.123 of 2003. It is the above charge sheet and the case pending before the court below are sought to be quashed in these proceedings. 2. As per Annexure A1 charge sheet, the allegation against the petitioners is that the marriage between the first petitioner and third respondent had taken place on 9.11.1999 and the accused were given gold ornaments to the tune of 25 sovereigns and Rs. 25,000/- and 5 cents of property as dowry and the marriage had taken place in the Kalyanamandapam viz., Balaramapuram Viswanadha Kalyanamandapam and after the marriage, the third respondent was residing along with the first petitioner in his house as his wife. It is the further case of the wife that the dowry already given was not sufficient and the first accused demanded more property and also mis-appropriated the gold ornaments and cash given as dowry and he further demanded a sum of Rs.50,000/- for conducting the shop Crl.M.C. NO. 1021 of 2004 :-3-: for him. For the above purpose, according to the third respondent, the first accused after taking liquor used to harass the de facto complainant both physically and mentally. It is also the case of the wife that in the wed lock, she was conceived and when she was in three months pregnancy, the second accused inserted towel on her mouth, the third accused hit on various parts of her body and thus, the accused physically manhandled the de facto complainant and mentally tortured her. It is also the case of the de facto complainant that on 25.7.2001, the first accused received a sum of Rs.50,000/- from CW-2 and when the de facto complainant was residing along with the first accused, the first accused demanded the de facto complainant to register the five cents of property for the purpose of marriage of the third accused and when such request was rejected, the accused 1 to 4 poured kersone oil on the body of the de facto complainant threatening to kill her and the de facto complainant escaped from the Crl.M.C. NO. 1021 of 2004 :-4-: clutches of the accused with the baby. After investigation, the Police re-iterated the above allegation and the petitioners were charge sheeted with the above allegation. It is the above report being sought to be quashed in these proceedings. 3. I have heard the learned counsel for the petitioners, learned counsel for the third respondent as also the learned Public Prosecutor. 4. The contentions of the petitioners are to the effect that the offence under Section 498A will be attracted only when the allegation under Section 498A is against the husband or relative of husband of a woman subjecting her to cruelty. According to the petitioners, as per Annexure A2 judgment dated 30.7.2002, the marriage between the first petitioner and the third respondent has been dissolved and divorce was allowed at the instance of the first petitioner/first accused. Therefore, according to the petitioners, there is no marital relationship between the first respondent and Crl.M.C. NO. 1021 of 2004 :-5-: the third respondent and therefore no offence under Section 498A will lie. It is the further case of the petitioners that in view of Explanation to Section 498A, cruelty cannot be a harassment if there is no allegation that the cruelty was to coerce 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. According to the petitioners, on a reading of Annexure A1 report, there is no such allegation about the demand of dowry or any unlawful demand. So, according to the petitioners, there is no unlawful demand and the mere demand for property will not amount to a dowry demand or unlawful demand and hence, according to the petitioners, no offence is disclosed against the petitioners by moving Annexure A1 report. 5. Per contra, the learned counsel for the third respondent pointed out that Annexure A2 judgment is only an ex parte judgment and there was no proper Crl.M.C. NO. 1021 of 2004 :-6-: consideration on merit regarding the rival contentions of the parties and therefore, Annexure A2 judgment is not helpful for the petitioners for an order under Section 482 of the Code of Criminal Procedure. 6. The learned Public Prosecutor submits that the Police, after thorough investigation, found that the petitioners are guilty of the charges under Section 498A and it is open to them to raise whatever contentions they have got before the court below. The question regarding the demand whether it is an unlawful or lawful is a matter to be decided at the time of trial, that too after evidence. 7. I have carefully considered the arguments advanced on behalf of the parties and also perused the materials available on record. It is a fact that the petitioners are not denying the fact that the first petitioner had married the third respondent and a baby born in the wed lock. It is also clear from the report that the marriage was on 9.11.1999 and the said fact is also Crl.M.C. NO. 1021 of 2004 :-7-: not disputed by the parties. The only ground is that as disclosed by Annexure A2 judgment, there is no marital relationship between the first petitioner and the third respondent and therefore, Section 498A will not be attracted. I am unable to accept and appreciate the above contention. Annexure A2 judgment is dated 30.7.2002. Even according to Annexure A1 report, the marriage between the first petitioner and the third respondent had taken place on 9.11.1999 and they were residing together as man and wife and a baby born in that wedlock. It is also the case of the de facto complainant that after the marriage, she was harassed demanding more property and finally Rs.50,000/- was received on 25.7.2001. Thereafter also, the third respondent was being harassed by the first petitioner by pouring kerosene oil on her body from where she escaped with the baby. So the entire allegations are pertaining to the period starting from 9.11.1999 to 9.10.2002 before filing of the complaint on the basis of Crl.M.C. NO. 1021 of 2004 :-8-: which the Police registered the crime and investigation was undertaken. So at the time of the alleged occurrence, there was a valid marriage between the first petitioner and the third respondent. 8. Learned counsel for the third respondent pointed out that the third respondent has already approached the Family Court, Thiruvananthapuram by filing a petition to set aside the ex parte order dated 30.7.2002 in O.P.(HMA) No.893 of 2000 and the petitioners have suppressed the above aspect in this Crl.M.C. However, as the Police report disclosed the offence under Section 498A, I am not inclined to interfere with Annexure A1 final report. The question whether the allegations and the materials are sufficient or not to substantiate the offence is to be decided by the trial court on appreciation of evidence to be adduced during trial. The contention of the petitioners that no offence will lie against the petitioners in view of Annexure A2 judgment, can also be effectively raised Crl.M.C. NO. 1021 of 2004 :-9-: before the court below during trial and it is for the trial court to decide on the basis of the evidence whether the offence will lie against the petitioners. 9. In the light of the above facts and circumstances and the discussion, I am of the view that there is no merit in the Crl.M.C. Accordingly, the Crl.M.C. is dismissed. No order as to costs. V.K.Mohanan, Judge MBS/ Crl.M.C. NO. 1021 of 2004 :-10-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- O R D E R Crl.M.C. NO. 1021 of 2004 :-11-: DATED: -6-2008 Crl.M.C. NO. 1021 of 2004 :-12-: