IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.MC.No. 385 of 2009() ------------------------ CC.38/2007 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER(S): ACCUSED NO.1 TO 5: --------------------------------------------------------- 1. SATHEESAN.K.R. AGED 45 YEARS, S/O.RAGHAVAN, KIZHAKKEKKARA VEETIL,MELUKARA KOZHENCHERRY P.O. VILLAGE & TALUK (ACCUDED NO.1) 2. BHAVANIAMMA, AGED 80 YEARS,W/O.RAGHAVAN, KIZHAKKEKKARA VEETIL, MELUKARA, KOZHENCHERRY P.O. VILLAGE AND TALUK (ACCUSED NO.2) 3. KRISHNAKUMARI, AGED 42 YEARS, W/O.PRASANNAN,PRASANNA BHAVANAM,THEKKEMALA MURI, KOZHENCHERRY VILLAGE & TALUK.(ACCUSED NO.3) 4. SOMARAJAN, AGED 54 YEARS, S/O.RAGHAVAN, RAJ BHAVAN VEETIL, KOZHENCHERRY P.O. VILLAGE & TALUK. (ACCUSED NO.4) 5. MANOJ, AGED 40 YEARS, S/O.RAGHAVAN, KIZHAKKEKKARA VEETIL, MELUKARA, KOZHENCHERRY P.O. VILLAGE AND TALUK (ACCUSED NO.5) BY ADV. MR.V.SETHUNATH RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. USHA KUMARI, AGED 40 YEARS, D/O.NANU, NIKKATTUPARAMBIL,VARAYANNUR P.O.& MURI, KOIPURAM VILLAGE, PATHANAMTHITTA DISTRICT. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.C.S.MANILAL, MR.M.K.SUBHAKARAN. R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI . THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.516/2008 IN CRMC.NO.385/2009 DISMISSED 09/06/2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.385 OF 2009 =========================== Dated this the 9th day of June,2009 ORDER Accused 1 to 5 in C.C.38/2007 on the file of Chief Judicial Magistrate, Pathanamthitta are the petitioners. First respondent is the complainant. First petitioner is the husband, second petitioner is the mother-in-law and petitioners 3 and 4 are the sister-in-law and brother-in-law of the first respondent. First respondent originally filed a complaint before Chief Judicial Magistrate, Pathanamthitta alleging offences under sections 498A and 494 read with section 34 Indian Penal Code against all the accused. Learned Magistrate forwarded the complaint for investigation under section 156(3) of Code of Criminal Procedure. After investigation Annexure 3 refer report was filed stating that the complaint is false. First respondent then filed Annexure 4 private complaint, which was taken cognizance by the learned Chief Judicial Magistrate. After the appearance of the accused, Magistrate recorded statement of first respondent and one witness Crl.M.C.385/2009 2 as Pws.1 and 2 as provided under section 244 of Code of Criminal Procedure. They were cross examined by counsel appearing for the accused. Learned Chief Judicial Magistrate thereafter framed charge for the offence under section 498A read with section 34 IPC as against petitioners and for the offence under section 494 read with section 34 IPC as against the first petitioner and accused 6 and 7. This petition is filed under section 482 of Code of Criminal Procedure to quash the charge framed by the court as well as the proceedings before the Chief Judicial Magistrate, Pathanamthitta. 2. Learned counsel appearing for the petitioners and first respondent were heard. 3. Learned counsel appearing for the petitioners argued that as per the case of the first respondent, with accused 6 and 7 committed offence under section 494 read with section 34 IPC and accused 6 and 7 have nothing to do with the offence under section 498A for which alone accused 2 to 5 were charged and while framing charge Chief Judicial Magistrate did not consider the question whether both the offence could be tried together in view of the provision of Section 218 and 223 of Code of Criminal Procedure. Learned counsel also argued that there is no material to attract an offence under section 498A and even section 494 IPC. 4. Learned counsel for the first respondent argued that Crl.M.C.385/2009 3 there are materials available in the complaint as well as statements of Pws. 1 and 2 and therefore there is no reason to interfere with the charge. 5. On hearing the learned counsel and going through the statements of Pws. 1 and 2 recorded, along with the private complaint filed by first respondent as well as the refer report, it appears that the Magistrate did not consider the question in the proper perspective. There is no material to establish the marriage of first petitioner with first respondent and as such though first respondent promised to produce the records later, it was not produced. There is also substance in the argument that question of the Commission of the offence of Section 498A was also not properly considered by the Chief Judicial Magistrate. 6. In such circumstance, Annexure 6 charge framed by the Chief Judicial Magistrate is quashed. Learned Chief Judicial Magistrate is directed to hear the first respondent and the accused as provided under section 245 of the Code of Criminal Procedure and consider whether on the materials available charge could be framed and if so for what offence the accused is to be discharged. If first respondent seek permission to let in further evidence, Chief Judicial Magistrate may consider the prayer. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE Crl.M.C.385/2009 4 tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006