IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 Crl.MC.No. 3875 of 2009() ------------------------- CRIME NO.557 OF 2009 OF VATTIYOOKAVU POLICE STATION PETITIONER(S): ACCUSED: ----------------------- JOOSHA S., S/O.R.ASOKAN ASSARI ABHAYAM, VELAVOOR, KOLIYAKODU P.O., VENJARAMOODU VIA, TRIVANDRUM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): --------------- 1. R.ASOKAN ASSARI, S/O.RAMANKUTTY ASSARI, "MUNNARAM", T.C.10/1532, VKRA-D-411, VATTIYOORKAVU, TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.M.C. No. 3875 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 14th day of January, 2010 JUDGMENT Petitioner is the wife and first respondent her husband. They were together residing in building No.T.C.10/1532 of Vattiyoorkavu. First respondent filed Annexure-A complaint before Judicial Magistrate of the First Class-II, Nedumangad, alleging that petitioner committed theft of 21 articles mentioned in the complaint. As per the allegation in the complaint, on 16-8-2009 at 1.30 P.M. when he returned to the house from the office, he found that petitioner and the child aged six years are not there in the house. It is alleged that, on enquiry, it is revealed that they had gone to their family house. According to him, when he obtained the key of the house from the neighbour and opened the door and entered the house, it was found that his articles kept in the house, including the articles kept locked in the almarah, were stolen. It is alleged that the articles were stolen by the petitioner along with accused 2 Crl.M.C. 3875/09 2 and 3 and they were taken away in the car belonging to the second accused. It is also alleged that even a scooter belonging to first respondent was stolen by the second accused. 2. The learned Magistrate sent Annexure-A complaint for investigation under section 156(3) of the Code of Criminal Procedure. The Sub Inspector, Vattiyoorkavu Police Station, by Annexure-B F.I.R. registered Crime No.557 of 2009 for offences under sections 120A, 378, 441, 442 and 445 read with section 34 IPC. This Crl.M.C. Is filed under section 482 of the Code of Criminal Procedure to quash the F.I.R. and the complaint as against the petitioner, contending that it is only an abuse of process of the court. 3. It is contended that the house where petitioner and first respondent were living was purchased by them jointly under Annexure-C sale deed dated 16-9-2006 and both were residing together till 16-8-2009. It is also contended that due to the domestic violence and abuse, petitioner was compelled to leave the house along with the child on 15-8-2009. Crl.M.C. 3875/09 3 Annexure-D application was filed before Judicial Magistrate of the First Class-II, Nedumangad under section 12 of the Protection of Women from Domestic Violence Act, 2005. Annexure-E interim order dated 17-8-2009 was passed by the learned Magistrate against the first respondent. It is thereafter Annexure-A complaint was filed, alleging false facts and it is only an abuse of process of the court. 3. Heard the learned counsel appearing for the petitioner and learned Public Prosecutor. 4. Learned Public Prosecutor submitted that case is under investigation. Annexure-C sale deed shows that the property wherein the building T.C.No. 10/1532 is situated was purchased by the petitioner and first respondent jointly in September, 2006. Therefore, it cannot be disputed that the house, from where the petitioner alleged committed theft, belongs both to the petitioner and the first respondent. If Annexure-A complaint is to be taken as correct, on 16-8-2009 petitioner and the first respondent were living together. If that be so, it cannot be said that petitioner has no right over the Crl.M.C. 3875/09 4 articles kept in the house. In any case, even if petitioner has removed any articles from the house, it would not attract an offence under section 379 of the Indian Penal Code, as alleged. 5. Annexure-A complaint is dated 19-8-2009. The allegation therein is that on 16-8-2009 before 1.30 P.M. theft was committed. Annexure-D petition was filed by the petitioner before the learned Magistrate under section 12 of the Protection of Women from Domestic Violence Act on August, 2009. As the date of filing is not seen in Annexure-D, it is not clear when exactly it was filed, except that it was filed in August, 2009. But Annexure-E interim order was passed, under section 23(2) of the said Act establishes that the application under section 12 was filed at least on 17-8-2009, as it was on 17-8-2009, the interim order was passed. Annexure-D complaint shows that it was asserted by the petitioner that she left the house along with the child on 15-8- 2009 itself. Therefore, prima facie the allegation Annexure-A that petitioner was found missing along with the child on 16-8- 2009, when he returned from the office, cannot be correct. Crl.M.C. 3875/09 5 6. When the theft was allegedly committed from the house jointly belonging to the petitioner and her husband the first respondent, petitioner cannot be prosecuted for an offence under section 379 of the Indian Penal Code. In the nature of allegations raised in Annexure-D complaint filed before the learned Magistrate under the Protection of Women from Domestic Violence Act and the fact that Annexure-A complaint was filed after Annexure-E order is passed, it is clear that the complaint is raised without any bona fides. It is only an abuse of process of the court. Therefore, it is not in the interest of justice to continue the case against the petitioner. Hence, the Crl.M.C. Is allowed. Crime No.557 of 2009 of Vattiyoorkavu Police Station against the petitioner alone is quashed. M.SASIDHARAN NAMBIAR, JUDGE. mn.