IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 Crl.MC.No. 1755 of 2008() -------------------------------------- (C.C.NO.1185/2007 OF JFCM., CHALAKUDY) PETITIONERS: ACCUSED 1 TO 6: ------------------------------------------------- 1. ABOOBACKER SIDDIQUE @ SHIBU, S/O.SULTHAN MOIDEEN, KALLUPARAMBIL HOUSE, MELOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. FATHIMA BEEVI, W/O.SULTHAN MOIDEEN, KALLUPARAMBIL HOUSE, MELOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. VAHEEDA, D/O.SULTHAN MOIDEEN, KALLUPARAMBIL HOUSE, MELOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. SAVARUNNEESA, D/O.SULTHAN MOIDEEN, KALLUPARAMBIL HOUSE, MELOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 5. NABEESA, D/O.SULTHAN MOIDEEN, KALLUPARAMBIL HOUSE, MELOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 6. ABDUL RAZAK, S/O.SULTHAN MOIDEEN, KALLUPARAMBIL HOUSE, MELOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL RESPONDENTS: STATE & DEFACTO COMPALINANT: ------------------------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KORATTY POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. MUBEENA, D/O.KUNHUMUHAMMED, MANJAKANDAN HOUSE, VELLIKULANGARA DESOM, VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 1755 of 2008 ------------------------------------------------- Dated this the 30th day of July, 2008 ORDER The petitioners face indictment in a prosecution under Sec.498A IPC. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. The crime, in turn, was registered on the basis of a private complaint filed by the de facto complainant/the 2nd respondent herein which was referred by the learned Magistrate to the police under Sec.156(3) Cr.P.C. The petitioners have now come to this Court with a payer that the prosecution against them which is pending before the learned Judicial Magistrate of the First Class, Chalakudy, as C.C.No.1185/07 may be quashed. 2. What is the reason? The learned counsel for the petitioners submits that there has been a settlement of the Crl.M.C. No. 1755 of 2008 -: 2 :- disputes between the petitioners on the one hand and the 2nd respondent on the other. On the basis of such settlement, the claim for dissolution of marriage under the Dissolution of Muslim Marriage Act was allowed and the claim for return of ornaments etc., was dismissed. Admittedly, that agreement has not been reduced to writing. Merely because those proceedings before the Family Court were settled, it is impossible for this Court now to assume that all the disputes, including the disputes in this case about the alleged matrimonial cruelty, have been settled. In these circumstances, it is not possible to invoke the dictum in B.S. Joshy v. State of Haryana (AIR 2003 SC 1386) and quash the prosecution under Sec.498A IPC against the petitioners. It is significant that the 2nd respondent has not appeared before this Court to confirm that she has compounded the offence of matrimonial cruelty allegedly committed against her by the petitioners. Even the fact that the agreement has not been reduced to writing clearly indicates that there was no agreement regarding the discontinuance of their criminal prosecution pending prosecution between the parties. 3. The learned counsel for the petitioners then contends that the allegations against the petitioners are so totally Crl.M.C. No. 1755 of 2008 -: 3 :- unjustified that they do not deserve to stand the trial for the offence under Sec.498A IPC. The learned counsel particularly argues that the allegations against the mother and siblings of the husband are not justified at all. The learned counsel has referred my attention to certain averments in the private complaint filed to contend that there is no sufficient material to proceed against the mother-in-law and the siblings-in-law of the 2nd respondent. The allegations in the complaint cannot be reckoned as sacrosanct when cognizance is taken on the basis of the final report submitted after due investigation. Cognizance has been taken by the learned Magistrate. The petitioners can certainly appear before the learned Magistrate and seek premature termination of the proceedings against them by discharge under Sec.239 Cr.P.C. I am not persuaded to agree that, on the materials presently available and brought to my notice, the prosecution against the petitioners under Sec.498A IPC deserves to be quashed. The entire material relied on by the prosecution under Sec.173 Cr.P.C. has not been placed before me. 4. The learned counsel for the petitioners submits that in the peculiar facts and circumstances of this case, petitioners 2 to Crl.M.C. No. 1755 of 2008 -: 4 :- 5 may be directed to appear through counsel and plead discharge under Sec.239 Cr.P.C. I am satisfied that appropriate directions can be issued. 5. In the result: (a) This Crl.M.C. is dismissed. (b) But it is directed that petitioners 2 to 5 shall be permitted to appear through counsel and advance their plea for discharge under Sec.239 Cr.P.C. If those petitioners appear through their counsel, the counsel shall be heard on the question of discharge and the personal presence of those petitioners shall be insisted by the learned Magistrate only if the learned Magistrate takes a decision against the petitioners under Sec.239/240 Cr.P.C. Till then their counsel shall be permitted to represent them. (R. BASANT, JUDGE) Nan/ Crl.M.C. No. 1755 of 2008 -: 5 :-