IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 Crl.MC.No. 1825 of 2008() ------------------------- CC.377/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... PETITIONER: ACCUSED 1 TO 3. --------------------------- 1. VIBHUDEVAN NAIR, S/O. RAGHAVAN NAIR, VARAVILAYIL VEEDU, AMBALATHUMBHAGOM, PORUVAZHY, SASTHAMKOTTA, KOLLAM. 2. RAJAMMA, W/O. RAGHAVAN NAIR, VARAVILAYIL VEEDU, AMBALATHUMBHAGOM, PORUVAZHY, SASTHAMKOTTA, KOLLAM. 3. VASUDEVAN NAIR, S/O. RAGHAVAN NAIR, VARAVILAYIL VEEDU, AMBALATHUMBHAGOM, PORUVAZHY, SASTHAMKOTTA, KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENTS: COMPLAINANT. ------------------------- 1. SINDHU RANI L., D/O. LALITHA, KOTTARA KIZHAKKATHIL VEEDU, KAVANADU P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSHKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C No.1825 of 2008 ------------------------------------- Dated this the 23rd day of May, 2008 ORDER Petitioners are the husband of the defacto complainant and his mother and brother. They face indictment in a prosecution under Section 498 A I.P.C. The defacto complainant, ie. the wife of the 1st petitioner had filed a private complaint alleging that the petitioners are guilty of matrimonial cruelty of the culpable variety against her. On the said private complaint, the learned Magistrate has taken cognizance and the proceedings are pending before the learned Magistrate now. The petitioners have already entered appearance and have been enlarged on bail. 2. The learned counsel for the petitioners prays that the powers under Section 482 Cr.P.C may be invoked and the unjustified prosecution against the petitioners may be brought to premature termination. What is the ground ? The learned counsel for the petitioners submits that all the allegations raised against the petitioners are false. There is not a scintilla of truth in the allegations raised. The allegations are vague and not specific. These allegations have been raised only after the 1st petitioner chose to move the Family Court claiming divorce against the Crl.M.C No.1825 of 2008 2 defacto complainant. The present prosecution is calculated as a retaliatory measure of harassment and vexation to the petitioners. In these circumstances, the petitioners may be saved of the trauma of this undeserved prosecution, submits the learned counsel for the petitioners. 3. I have been taken through the averments in the petition in detail. I have taken note of the circumstance that the complaint was filed only after proceedings for divorce were initiated before the Family Court. I am not persuaded to agree that these are sufficient circumstances to justify or warrant the invocation of the extraordinary inherent jurisdiction available to this Court under Section 482 Cr.P.C. The averments in the complaint have been gone through in detail by me. I am unable to agree that those allegations, if accepted, would not constitute the offence punishable under Section 498 A I.P.C. Similarly the mere fact that the wife chose to suffer in silence and ultimately chose to raise a complaint before the court only after she found all chances of reconciliation closed and the 1st petitioner approached the Family Court for divorce cannot by itself be held to be sufficient to knock the bottom out of the allegations raised in Annexure-I. It would be unrealistic and artificial to adopt such a Crl.M.C No.1825 of 2008 3 yardstick for appreciation of conduct while considering the claim for quashing of proceedings under Section 482 Cr.P.C. 4. This Crl.M.C is, in these circumstances, dismissed. I may however hasten to observe that I have not intended to express any opinion on merits about the acceptability of the allegations raised. The petitioners' right to claim discharge under Section 245(2) or 245(1) Cr.P.C or acquittal at later stages shall remain unfettered by the dismissal of this Crl.M.C. 5. The learned counsel for the petitioners finally submits that the petitioners will be put to great hardship and loss if ritualistic insistence were made on their personal presence before the learned Magistrate on all dates of posting. It is pointed out that the 2nd petitioner is a woman, aged above 70 years. I find no reason why any court must ritualistically insist on the personal appearance of such persons. It is for the petitioners to make appropriate application before the learned Magistrate for exemption from appearance and I have no reason to assume that the learned Magistrate shall not consider the same on merits and in accordance with law. Every court must do the same. (R.BASANT, JUDGE) rtr/- Crl.M.C No.1825 of 2008 4