IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.MC.No. 4149 of 2008() ------------------------- (FIR 392/07 OF NADAKKAVU POLICE STATION) PETITIONER(S): ACCUSED --------------- 1. JOHNSON GARINE.T., JESUS VILLA, NADUVETHINIMEETHAL NELLIKODE, KOZHIKODE. 2. DEVADAS, THEYYIL, JESUS VILLA, NADUVETHINIMEETHAL NELLIKODE, KOZHIKODE. 3. ASTHER LILLY, NESUS VILLA, NADUVETHINIMEETHAL, NELLIKODE, KOZHIKODE. BY ADV. SRI.NIRMAL. S RESPONDENT(S): STATE & COMPLAINANT --------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. O.L.SHEELA, D/O.LUIS 36 YEARS, ULLEKINKEL HOUSE, CHALIKKARA, THOTTULLIPOYIL, CIVIL STATION PO., KOZHIKODE. BY PUBLIC PROSECUTOR SRI.AMJAD ADLI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4149 of 2008 ------------------------------------- Dated this the 4th day of November, 2008 ORDER Petitioners face indictment in a prosecution for offences punishable, inter alia, under Section 498 A I.P.C. They are husband, father in law and mother in law respectively of the 2nd respondent herein. The spouses have been married for some time and are blessed with two children, it is submitted. The 2nd respondent/wife is employed as a nursing Warden. 2. The 2nd respondent/wife filed a private complaint before the learned Judicial Magistrate of the First Class-II alleging that offences have been committed against her by all the 3 petitioners. That complaint was referred to the police under Section 156(3) Cr.P.C. Investigation was conducted. Final report was filed. The petitioners have entered appearance. Charges have not been framed so far, submits the counsel. 3. At this stage the petitioners have come before this Court with a request to this Court to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C to quash the proceedings initiated against them on the basis of the final report. 4. What are the reasons ? The learned counsel for the petitioners advances 3 contentions. First of all it is contended Crl.M.C. No.4149 of 2008 2 that this complaint filed and the initiation of proceedings against the petitioners are only counter blast against them for the 1st petitioner having initiated proceedings before the civil court (Family Court) to restrain the 2nd respondent/wife from alienating an item of property which allegedly was purchased by the husband in her name. The allegations are not bona fide. They are actuated by mala fides. In these circumstances proceedings may be quashed, it is prayed. The counsel points out that after an interim order of injunction was passed, when the civil proceedings were posted to a particular date - on a day prior to that day, this complaint was filed before the learned Magistrate raising vexatious allegations. 5. I must remind myself that I am called upon to invoke and exercise the extraordinary inherent jurisdiction. It is not possible at this stage to embark on a rowing enquiry to ascertain whether the allegations are true or false. The mere fact that the wife had complained about the alleged cruelty only after the husband dragged her to court is itself, according to me, no reason at this stage to conclude that the proceedings are vexatious and mala fide and hence deserve to be quashed on that ground. The challenge raised on the first ground must hence fail. Crl.M.C. No.4149 of 2008 3 6. Secondly the learned counsel for the petitioners contends that the 3rd petitioner wanted to raise a plea of alibi. The Investigating Officer was notified about that plea which was available to the said petitioner. The grievance of the petitioners is that the Investigating Officer who is said to be biased and not fair did not investigate into this aspect of the case at all. 7. I will assume that the grievance of the petitioners is correct. It is now well settled as per the decision in Shaji v. State of Kerala [2003(2) KLT 929] that such a grievance of the accused can be redressed by seeking further investigation of that specific aspect act under Section 173(8) Cr.P.C. The petitioners can be relegated to seek further investigation under Section 173 (8) Cr.P.C before the Magistrate and when such an application is filed, the learned Magistrate must certainly consider the same and pass appropriate orders. 8. Thirdly and lastly it is contended that the jurisdiction has been manipulated by the 2nd respondent/defacto complainant to ensure that the investigation is conducted by the Nadakkavu Police. The said police is biased and are not acting fairly and justly. It is, in these circumstances, contended that the prosecution deserves to be quashed for the reasons that the Crl.M.C. No.4149 of 2008 4 complaint has been filed in such a way as to manipulate the jurisdiction and to ensure that the Nadakkavu police gets and claims jurisdiction over the subject matter. 9. The counsel contends that the spouses had occasion to reside together only at 3 places. They are, the matrimonial home, paternal house of the husband as also the paternal house of the wife. The 2nd respondent/wife has a further contention that there was joint residence at the quarters alloted to her as a nursing warden of the Medical College. But the petitioners contend that the spouses have never resided there. That dispute does not appear to be very important. The contention is that except the paternal house of the wife, all other 3 houses are situated within the jurisdiction of Medical College Police. To avoid jurisdiction for the Medical College police, false allegations have been raised that the cause of action had arisen within the jurisdiction of Nadakkavu Police Station, where the wife's paternal house is situated. 10. I am unable to agree that the question of jurisdiction alleged is so important or significant as to justify the invocation of the jurisdiction under Section 482 Cr.P.C. Any defect, inadequacy, mala fides or vice in investigation if relevant or crucial can be taken advantage of by the petitioners in the Crl.M.C. No.4149 of 2008 5 course of trial and I am not satisfied that for that simple reason powers under Section 482 Cr.P.C deserve to be invoked. It is relevant to note that there is a case for any one that the paternal house of the wife is not situated within the jurisdiction of Nadakkavu Police Station. 11. I am, in these circumstances, satisfied that powers under Section 482 Cr.P.C do not deserve to be invoked. I am satisfied however that there can be an observation that the option of the petitioners to seek further investigation under Section 173(8) Cr.P.C shall not be fettered by the dismissal of this Crl.M.C. 12. The learned counsel for the petitioners submits that if unnecessary insistence were made on the personal presence of the petitioners on all dates of posting, that would work out great prejudice, hardship and inconvenience to the petitioners. The petitioners can apply for their personal exemption and the learned Magistrate must consider such prayer on merits and in accordance with law. (R.BASANT, JUDGE) rtr/-