IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 Crl.MC.No. 2248 of 2007() ------------------------- PETITIONER: ------------ GEORGEKUTTY JOSEPH, AGED 40 YEARS, S/O JOSEPH, THUPPALATHIYIL HOUSE, KARIMPANI, KATTAKKARA, KOTTAYAM DIST. BY ADV. SMT.TISSY ROSE K CHERIYAN SRI.JACOB E SIMON RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JISHA VARGHESE, W/O GEORGEKUTTY JOSEPH, KOOVAKKATTU HOUSE, IMPIDI BHAGATHU, THOTTAKKAD VILLAGE, KARUKACHAL, KOTTAYAM. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR SRI.SURIN GEORGE IPE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. M.C. NO. 2248 of 2007 * * * * * * * * * * * * * * * * * * Dated: 07-02-2008 ORDER In this petition filed under Sec. 482 Cr.P.C. the petitioner George Kutty Joseph who is the father of a 4 ½ year old female child by name Lyn Elizabeth seeks to quash the F.I.R. in Crime No. 166 of 2007 of Karukachal Police Station . Subsequently, the petitioner filed Crl.M.A. No. 6127 of 2007 to include an additional prayer to quash all proceedings including the final charge before the J.F.C.M. , Changanassery in C.C. No. 550 of 2007 . 2. I heard both sides. 3. The 2nd respondent Jisha Varghese is the legally wedded wife of the petitioner. Their marriage was solemnized on 15-10-2001. Both were employed in the Persian Gulf and Lyn Elizabeth was born in that wedlock at a time when the spouses were in the gulf. After entrusting the baby with the parents of Jisha Varghese in Kerala, she along with her husband (the petitioner) went back to the Gulf. Subsequently, some time in the year 2004 both of them returned from the gulf and started living together in the house of the 2nd respondent. While so, in November 2006, the 2nd respondent got employment as Crl. M.C. NO. 2248 of 2007 -:2:- a nurse in Ireland and she proceeded to Ireland leaving the child with the petitioner at Karukachal. The petitioner soon moved out of the house of the 2nd respondent along with the child into a room on the upstair portion of a lodge building. The 2nd respondent came on leave some time in the year 2007 and found that the child was confined in a room in a two storeyed building by the petitioner and subjected to ill-treatment. She thereupon lodged a complaint before the Karukachal Police alleging the commission of an offence punishable under Sec. 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (J.J. Act for short) against the petitioner herein. The said complaint was registered as Crime No. 166 of 2007 by the Karukachal Police Station. The child was produced by the police before the Chief Judicial Magistrate, Kottayam and that Court entrusted the child with the 2nd respondent mother. But on 18- 08-2007 the 2nd respondent handed over the child to the Child Welfare Committee, Kottayam which in turn sent the child to St. Joseph's Childrens' House, Kummannoor. It is at that stage that the petitioner approached this Court with the present Crl.M.C. alleging that it was on the basis of a false complaint filed by his wife that the above crime was registered. Pending this Crl. M.C. the child was placed in a boarding school namely, Carmel English Medium School , Crl. M.C. NO. 2248 of 2007 -:3:- Nalukodi. Subsequently, Karukachal Police filed the final report before the Judl. First Class Magistrate, Changanassery to the effect that for the past 4 months the petitioner had confined the child in a room on the upstair portion of a two storeyed building bearing No. 556 of Ward No. III of Karukachal Panchayath without properly attending to for the needs of the child and that the petitioner herein had thereby committed an offence punishable under Sec. 23 of the J.J. Act. The child was questioned by the Sub Inspector of Police, Karukachal on 2-7-2007. She was not able to mention the school in which she was studying in the L.K.G. Class. She told the Inspector that she had not gone to the school during the year 2007. When she was asked the reason for the same she told him that her father did not let her go to the school. When she asked whether her father used to ill-treat her she answered in the affirmative. When the reason for ill-treatment was asked she told the Inspector that she used to be beaten up by her father saying that she dare not insist on going to her mother. She told the Inspector that she was staying in a single room. 4. It is too early to accept the contention of the petitioner that the allegations in the final report are false or that they do not make out an offence punishable under Sec. 23 of the J.J. Act. On the contrary, the allegations in the final report together with the Crl. M.C. NO. 2248 of 2007 -:4:- materials produced along with the same prima facie make out the alleged offence. No doubt, mere allegations may not amount to proof. Hence, the prosecution will have to prove the said allegation in order to bring home the offence alleged. I do not think that the learned Magistrate was wrong in taking cognizance of the offence. The only course open to the petitioner is to appear before the learned Magistrate and face the trial during which he shall be entitled to raise all the defences available to him. I am told that the proceedings for custody of the child are pending before the Family Court, Kottayam at Ettumanoor. Hence, the final order regarding the custody of the child shall be in accordance with the orders to be passed by that court. This Crl. M.C. is accordingly dismissed without prejudice to the right of the petitioner to contest the C.C. case pending before the J.F.C.M. Changanassery. It shall be open to the parties to move the Child Welfare Committee in case the child needs any medical attention . V. RAMKUMAR, (JUDGE) ani. Crl. M.C. NO. 2248 of 2007 -:5:-