IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 Crl.MC.No. 5082 of 2010() ------------------------------------ CC.NO. 641/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS, AMABALAPUZHA ALAPPUZHA DISTRICT .................... PETITIONER(S): ACCUSED --------------------------------------- 1. JIMMY JOSEPH, AGED 45 YEARS, S/O.V.K.JOSEPH,VANIYAPURACKAL HOUSE, NEAR CARMEL CONVENT,MADAPPALLY P.O, CHANGANASSERY. 2. ANNAMMA JOSEPH, AGED 82 YEARS, W/O.V.K.JOSEPH,VANIYAPURACKAL HOUSE, NEAR CARMEL CONVENT,MADAPPALLY P.O, CHANGANASSERY. BY ADV. SRI.V.N.RAMESAN NAMBISAN SRI.P.S.PRADEEP RESPONDENT(S): COMPLAINANT AND STATE OF KERALA ------------------------------------------------------------------------------------- 1. STATE OF KEARLA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. SUNI JOSEPH, AGED 42 YEARS, D/O.P.S.THOMAS, PARAPPALLIL AGENCIES, EDATHUA P.O, ALAPPUZHA DISTRICT.PIN- 689 375 R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R2 BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.5082 of 2010 -------------------------------------- Dated this the 25th day of March, 2011. ORDER Petitioners are accused 2 and 3 in C.C.No.641 of 2010 of the court of learned Judicial First Class Magistrate, Ambalappuzha for offences punishable under Sections 107,108, 351, 352, 358, 498A, 403, 323 and 506 read with Section 34 of the Indian Penal Code (for short, “IPC”). Case arose on a complaint filed by respondent No.2 before the learned Magistrate and forwarded to the Ambalapuzha Police for investigation. Police registered Crime No.456 of 2009, investigated and submitted final report (Annexure-3) for offences above stated. It is alleged that petitioners are accused No.1, husband of respondent No.2 committed the above stated offences in furtherance of their common intention. Learned counsel for petitioners contend that petitioner, the younger brother and mother of accused No.1 are residing about 40 kms. away from the matrimonial home where accused No.1 and respondent No.2 were staying together. It is also contended by the learned counsel that except some bald general allegations against petitioners, there is no specific case pleaded by respondent No.2 so as to implicate petitioners in any of the offences alleged. Placing reliance on the decision in Preeti Gupta v. State of Jharkhand (2010 (3) KLT SN.96 – Case No.101) it is prayed that proceeding against petitioners may be quashed. Learned counsel for respondent No.2 however Crl.MC No.5082/2010 2 reading from Annexure-1, complaint contended that there are sufficient materials to proceed against petitioner also. Learned counsel has referred me to the allegations contained in paragraph 3 of Annexure-1, complaint. 2. In Pulin Behari Das v. Emperor (13 Cri.L.J. 609) it is held that a complaint should contain a statement of facts relied upon as constituting the offence with as much certainty as the nature of the case would admit. It is not sufficient that the words of the Section of the Statute are literally copied. Taking the same view the Supreme Court in Sharda Prasad v. State of Bihar (AIR 1977 SC 1754) in paragraph 3 stated that when there is absence of sufficient particulars in the complaint it is within the power of the High Court to quash proceeding invoking power under Section 482 of the Code of Criminal Procedure (for short, “the Code”). Question for consideration is whether there are sufficient allegations in the complaint and the final report which constitute the offences alleged against the petitioners. 3. Even going by the averments in the complaint it would appear that petitioners were not staying in the matrimonial home at the time the alleged incident occurred as disclosed by the averments in paragraph 3 of Annexure-1, complaint that first petitioner instigated accused No.1 to physically harass respondent No.2 over telephone. In paragraph 3 of Annexure-1, complaint it is stated that on 02.02.2009 at the matrimonial home, accused No.1 assaulted respondent No.2 and criminally intimidated to kill her. It is alleged that the said act was done by accused No.1 at the instigation of first petitioner who was at Crl.MC No.5082/2010 3 Madappally, instigation having allegedly been given to accused No.1 over telephone. Further averment as against the petitioners is that on 08.02.2009 at the house of first petitioner at Madappally, at the instigation of petitioners/accused 2 and 3, accused No.1 assaulted respondent No.2. It is also alleged that accused No.1 told respondent No.2 that he will allow accused No.1 and respondent No.2 to live together only if respondent No.2 did not ask for maintenance expense for herself and child. 4. On going through Annexure-1, complaint I find that so far as second petitioner/accused No.3 is concerned, there is no specific allegation at all except some vague and general allegations. So far as first petitioner/accused No.2 is concerned, I stated the nature of allegations made against him. It is alleged that he instigated accused No.1 to physically harass respondent No.2 over telephone, staying in his house at Madappally. It is not stated in the complaint or even in the final report what exactly was the instigating words allegedly spoken by the first petitioner or that respondent No.2 had heard the conversation between first petitioner and accused No.1. Mere allegation that at the instigation of petitioners accused No.1 assaulted respondent No.2 is not sufficient to implicate them in the case. It is too vague to state that first petitioner claimed that he will allow accused No.1 and respondent No.2 to stay together only if respondent No.2 did not claim maintenance expenses for herself and the child from accused No.1. It would appear as if permission of first petitioner is required for accused No.1 and respondent No.2 to live together if they are willing and agreeable to live together. On the above allegations Crl.MC No.5082/2010 4 registration of the case against petitioners and, the submission of final report are unwarranted and cannot stand. 5. The Supreme Court in the decision relied on by the learned counsel has pointed out the tendency to implicate close relatives of the husband whenever there is an allegation of commission of offence under Section 498A of the IPC . The Supreme Court also pointed out that in such situation the allegation in the complaint are required to be scrutinized with great care and circumspection since experience revealed that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship among parties. The Supreme Court even alerted that a serious re-look of the entire provision is warranted by the Legislation. 6. On hearing learned counsel on both sides and going through Annexure-1, complaint I am satisfied that proceeding against petitioners/accused 2 and 3 is nothing an abuse of process of law. Resultantly this petition is allowed. Annexure-1, complaint, FIR, the final report, cognizance taken and all proceeding against petitioners/accused 2 and 3 in C.C.No.641 of 2010 of the court of learned Judicial First Class Magistrate, Ambalappuzha are quashed. THOMAS P.JOSEPH, Judge. cks