IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 3146 of 2005() ------------------------- CC.97/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... PETITIONER(S): ACCUSED ---------------------- 1. VELAYUDHAN, S/O.RARICHAN, VADAKKEYIL VEEDU, NADATHURUTHI.P.O., THALAKKULATHUR, KOZHIKODE. 2. GIRISH, S/O.APPU, POONATTIL HOUSE, NEAR NAVA CHETHANA LIBRARY, CHETTIKULAM, ELATHUR. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. SHYAMALA SATHIYAN, W/O.SATHIYAN, `SHYAMALA', PAVANGAD, PUTHIYANGADI, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI. JESWIN P.VARGHESE FOR R1 PUBLIC PROSECUTOR MATHEW VADAKKEYIL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.11799/2005 IN CRL.M.CNO.3146/2005 DISMISSED sd/- 3.6.09. (C.T.RAVIKUMAR, JUDGE) /True Copy/ P.A TO JUDGE. C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M..C. NO. 3146 OF 2005 -------------------------------------------- Dated this the 3rd day of June, 2009 ORDER 1. Petitioners are accused in C.C No. 97/2005 on the files of the Chief Judicial Magistrate, Kozhikode. Its genesis is from Annexure-A complaint filed by the 1st respondent, alleging commission of offences punishable under Section 344, 346, 347 read with 34 of the Indian Penal Code, by the petitioners. As per Annexure-A complaint, the husband of the 1st respondent/ defacto complainant is under illegal confinement of the petitioners and according to her, her husband was last seen along with them and thenceforth, she is in the dark on his whereabouts. It is stated therein that he is so missing from 9.2.2004 onwards. The learned Magistrate took cognizance on Annexure-A complaint and issued summons to the petitioners. The petitioner have filed the above Cr.M.C seeking to quash the entire proceedings before the Chief Judicial Magistrate Court, Kozhikode in C.C No.97/2005. 2. The case of the 1st respondent as could be seen from Annexure- A, is that the accused persons in furtherance of their common intension Crl.M.CNo.3146 of 2005 2 wrongfully confined her husband with a view to extort his property. Per contra the counsel for the petitioners brought to my attention to certain relevant and material facts which would belie the entire allegations and would throw light to the absolute absence of ingredients to constitute the offenses alleged against them. Earlier the 1st respondent had filed a complaint as C.M.P No.707/04 with the same set of allegations before the Judicial First Class Magistrate Court-III, Kozhikode seeking to issue a general search warrant. However, the learned Magistrate dismissed the same as on 6.3.2004. Though, initially, a crime was registered as Crime No.78/2004, again with the same set of allegations at Alathur Police station, the police have referred the matter “as further action dropped”because the husband of the 1st respondent, Mr. Sathiyan, the man alleged to be missing, appeared in the police station and gave statement to the contrary. He had specifically stated that he was an absolutely free man and not under any sort of confinement. Against the said order of the learned Magistrate in Crl.M.C No.707/04, the 1st respondent had filed Crl.R.P 24/04 before the Sessions Court, Kozhikode. The court summoned the case diary in Crime No.78/04 and perused the entire diary as is evident from the Annexure-F order dated 28.7.04 in Crl.R.P No.24/04. In this context paragraph 7 of Annexure-F is worthy to be extracted and the same reads as hereunder:- Crl.M.CNo.3146 of 2005 3 I have also perused the other documents produced in this case: wherein it is seen that Sathiyan had approached the Hon'ble High Court of Ketrala for police protection from the harassment of the wife and her family members. It is also seen that the petition before the Matrimonial Court is also filed and another application is filed before the court of the J.F.C.M, Koyilandy as well against the husband. So, it is very clear from the documents available in this case that the husband and wife are fighting each other and the husband before the S.I of Police had made a statement to the effect that he is not under illegal custody of anybody. For an action u/s 97 Cr.P.C what is required is that if any District Magistrate, Sub Divisional Magistrate or a Magistrate of the First Class has reason to believe that any person is confined under such circumstance, that confinement amounts to an offence, then he may issue a search warrant. So, there must be materials to show that there is reason to believe that a person is confined and that it amounts to an offence. Here, from the materials available, it has come out that the husband of the revision-petitioner is not at all confined and he had stated before the police regarding the same and further he had moved an application before the Hon'ble High Court for police protection from the wife and the members of the family of the wife. When that is the circumstance, I think the learned Magistrate has correctly appreciated and analysed the facts and dismissed the application u/s 97 Cr.P.C. It does not suffer from any infirmity at all. Therefore the revision is devoid of any merit and the same is only to be dismissed and I do so. 3. Another most important aspect is that the person alleged to be missing illegally confined, himself had approached this court by filing W.P.C No.6144/04 with a prayer for police protection. In fact the said Crl.M.CNo.3146 of 2005 4 petition was filed against his brother- in- laws who are the brothers of the 1st respondent. The very fact that the person alleged to be missing himself had approached this court during the relevant time by filing a writ petition itself is sufficient to sustain the contentions of the petitioners. That apart, the 1st respondent herself filed an affidavit in C.C No.871/04 before the Judicial Magistrate Court, Koyilandy on 30.11.04 and the same would also take me to the conclusion that Annexure-A is a complaint undeserving prosecution on its basis. A copy of the same has been produced in this Crl.M.C as Annexure-G. A bare perusal of Annexure-G would reveal that the 1st respondent is fully aware of the whereabouts of her husband and according to her he is abroad. It would also reveal that she is absolutely astute to the apsect that he is a free man and he is employed there. Under the circumstances exapatiated above no person could believe that the 1st respondent is absolutely unaware of the whereabouts of her husband. Infact there are pending disputes between them including matrimonial cases. The petitioner herself admits that one of the petitioners herein is none other than the nephew of her husband and the other was a helper of her husband. In the circumstances it can only be said that Annexure-A complaint is filed ulterior motives and also with a mala fide intension. 4. The court cannot be utilised for any oblique purpose and CRL.M.CNo.3146 of 2005 5 therefore, in view of the above discussions I am of the view that the criminal proceedings initiated by filing of Annexure-A complaint is an abuse of process of the court. I have already found that regard to the materials before me I am fully convinced that the ingredients of the offences alleged against the petitioners are not satisfied in Annexure-A and that even if the same is allowed to be proceeded with the chance of an ultimate conviction is bleak. It would also result in wasting of the precious judicial time. In these cirumstances, I think this is an eminently fit case to invoke the inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 5. Accordingly, the entire proceedings before the Chief Judicial Magistrate, Kozhikode in C.C No.97/o5 based on Annexure-A complaint is quashed and consequently, no proceedings shall be continued against the petitioners in C.C No.97/05. The criminal M.C is allowed as above. (C.T. RAVIKUMAR, JUDGE) spc