IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 Crl.MC.No. 4513 of 2010() ------------------------- CC.180/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... PETITIONER(S): 2ND AND 3RD ACCUSED: -------------------------------------------------------------- 1. P.B.MUHAMMED HANEEFA MOULAVI, S/O.(LATE)MUHAMMED BAVA,POTTAKKAMOLEL HOUSE, KOOVALLOOR KARA,POTHANIKKADU VILLAGE, ERNAKULAM DIST. 2. SHAJI, S/O.SAIDUMUHAMMED, KAKKUTHARAYIL HOUSE, MARTHOMAKARAYIL, KARIKKODU VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADVS. SRI.REFEECK CHENNARA, SRI.GHOSH YOHANNAN. RESPONDENT(S): DEFACTO COMPLAINANT: ------------------------------------------------------------------- 1. STATE OF KERALA , REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUHARA, W/O.SAIDU MUHAMMED, VALLOORAN HOUSE, MANNAMKANDAM, ADIMALI PO, IDUKKI DISTRICT,PIN 685 561. R1 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR R2 BY ADVS.SRI.A.T.ANILKUMAR, SMT.V.SHYLAJA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.4513 of 2010 ==================================== Dated this the 28th day of March, 2011 O R D E R Petitioners are accused 2 and 3 in Crime No.502 of 2008 of Adimali Police Station and C.C No.180 of 2009 of the court of learned Judicial First Class Magistrate, Adimali for offences punishable under Sections 343 and 403 read with Section 34 of the Indian Penal Code. Case originated on Annexure-I, complaint filed by the second respondent which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). Her case is that herself and children suffered burn injury and under the pretext of treating her and children, first accused (her husband) with the assistance of petitioners collected about Rupees Six lakhs from the public, misappropriated the same and purchased properties in the name of the first accused. Later the first accused and first petitioner under the pretext that the second respondent is a mental patient got her admitted in the Secret Heart Hospital at Paynkulam and she was wrongfully confined in that Hospital from 22.03.2008 to 30.03.2008 making the Medical Officer belief that she is a mental CRL.M.C. No.4513 of 2010 -: 2 :- patient. Police after investigation submitted final report. Leaned Judicial First Class Magistrate took cognizance against petitioners also for offences punishable under Secs.343 and 403 of the IPC (though in the complaint offences under Secs.424 and 418 were also alleged). Petitioners seek to quash proceeding against them on the ground that there is no material to make out any offence against them under Secs.343 and 403 of the IPC. I have heard learned counsel for petitioners, second respondent and learned Public Prosecutor. Leaned counsel asserted that no offence as alleged is made out against petitioners. Learned counsel has taken me through the relevant records of the case. Learned counsel for second respondent contended that there are specific allegations against petitioners also in Annexure-I, complaint and final report and hence petitioners have to face trial. 2. It is not disputed that if the allegations did not make out a case against petitioners this Court is justified in interfering under Section 482 of the Code. Two things which was found favour with the learned Magistrate for taking cognizance are the alleged misappropriation of money stated to be collected for treatment of the second respondent and children and alleged wrongful confinement of second respondent in the Hospital. So far CRL.M.C. No.4513 of 2010 -: 3 :- as alleged wrongful confinement is concerned, case set up by the second respondent and submitted by police in the final report is that first accused with the assistance of petitioners took her to the Sacred Heart Hospital for treatment for mental illness making the Medical Officer belief that she is a mental patient and got her admitted in the Hospital from 22.03.2008 to 30.03.2008. I have gone through the final report. Witness No.5 is the Medical Officer of Sacred Heart Hospital. He is cited to prove that second respondent was admitted in the hospital on 22.03. 2008, at that time all the accused (including the petitioners were present), that she was discharged on 30.03.2008 and that she had no mental problem. Annexure-13 is the copy of statement of the said Medical Officer where it is stated that while he was on duty in the Hospital on 22.03.2008 a lady by name Suhara (stated to be the second respondent) along with one Saidu Muhammed and Haneefa Moideen (according to the second respondent the said Haneefa Moideen is the first petitioner while first petitioner says that he is Mohammed Hanfeea). They said that the lady exhibited mental uneasiness. There were symptoms of burn injuries by her. The lady was kept under observation from 22.03.2008 to 27.03.2008. It is to ascertain truth of statement made by the CRL.M.C. No.4513 of 2010 -: 4 :- husband and the person who came along with him that she was kept under observation. It is the statement of the Medical Officer that apart from slight mental depression she had no such mental uneasiness and accordingly she was discharged on 30.03.2008. It is further stated that from 22.03.2008 till she was discharged she was not permitted to go outside (the hospital). Annexure-12 is a Certificate issued from Sacred Heart Hospital where it is stated that Diagnostic Psychometry conduced (on the second respondent) on 27.03.2008 revealed that she had depressive features but clinically no overt depressive symptoms sings were found. 3. So far as the allegation of wrongful confinement is concerned it is not shown that it was as demanded by the petitioners that second respondent was admitted in the Hospital. So far as third petitioner is concerned, there is no reference to his presence at the time the second respondent was brought to the Hospital. Presence is attributed to the second petitioner along with first accused. Even going by the statement of the Medical Officer it is not as if petitioners wanted the second respondent to be admitted in the Hospital. They only referred to the mental uneasiness second respondent allegedly had. That she had some CRL.M.C. No.4513 of 2010 -: 5 :- mental problem is clear from the statement of the Medical Officer as well as the Certificate (Annexures-13 and 12 respectively). In view of that, Medical Officer thought it fit that second respondent is to be kept under observation for some time. 4. Offence under Sec.343 of the IPC deals with punishment for wrongful confinement. That offence is defined in Sec.340 of the IPC as any person wrongfully restraining another in such a manner as to prevent that person from proceedings beyond certain circumscribing limits. I stated that apparently it is not a case where petitioners could insist on second respondent being admitted and confined in the Hospital. Her admission in the Hospital was as per advice of the Medical Officer that she should be kept under observation. That cannot be said to be a wrongful confinement at the instance of petitioners so that petitioners could be charged for offence under Sec.343 of the IPC. 5. So far as offence of misappropriation is concerned I have gone though the complaint. There is no specific allegation that petitioners or any of them collected any amount from anybody under pretext of treatment of second respondent. Allegation is that first accused collected money. Though it is alleged that petitioners conspired with the first accused for the CRL.M.C. No.4513 of 2010 -: 6 :- said purpose, but apart from such a bald allegation there is no case pleaded against petitioners. Materials produced by the investigating agency is also in the same way. It would appear that witnesses cited and questioned were to say that first accused collected money from certain persons through internet or otherwise for treatment of second respondent. Thus there is no sufficient material against petitioners to show that they have misappropriated any amount as alleged. In view of that, I am inclined to think that prosecution against petitioners cannot stand. I make it clear that I have not made any reference in this order as regards alleged involvement of the first accused with regard to the offences attributed to him. Resultantly, Criminal Miscellaneous Case is allowed. Final report in Crime No.502 of 2008 of Adimali Police Station, cognizance taken thereon and all proceeding in C.C. No.180 of 2009 of the court of learned Judicial First Class Magistrate, Adimali against petitioners/accused 2 and 3 are quashed. THOMAS P. JOSEPH, JUDGE. vsv