IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 Crl.Rev.Pet.No. 1970 of 2008() ------------------------------ CMP.481/2008 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER: PETITIONER -------------------------------------------------------- JOSE, AGED 25, S/O. MICHAEL, CHARANKATTU HOUSE, THUMBOLI.P.O, ALAPPUZHA DT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS: RESPONDENTS ----------------------------------------------------- 1. P. NIJALA, D/O. BHASKARAN, PARAMENTEVIDA, PANNIYANNUR AMSOM CHAMBAD DESOM, P.O. CHAMBAD, THALASSERY, KANNUR DT. CHEMBAD, PANOOR, THALASSERY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.K.P.HAREENDRAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.1970 of 2008 = = = = = = = = = = = = = = Dated this the 29th day of July, 2008 ORDER The revision petitioner (Jose) who hails from Thumboli in Alappuzha district challenges the order dated 19.3.08 in Crl.R.P.No.481/2008 on the file of the Additional Chief Judicial Magistrate, Thalassery. 2. The facts leading to the filing of the revision petition can be summarised as follows:- On 3.03.08 one Nijala, the mother of 23 year old Neethu who was a 2nd year M.Sc. student at Shanmugha College, Thalassery filed a private complaint before the Addl. Chief Judicial Magistrate, Thalassery alleging that her daughter(Neethu) was abducted by the revision petitioner herein on 7.2.08, and that on 8.2.08 and that the revision petitioner/ accused had telephoned her stating that Neethu was residing with him at Thumboli in Alappuzha district. Nijala also moved a petition for search under Section 97 Cr.P.C and the learned Magistrate issued a search warrant through SHO, Alappuzha for the production of the girl on 10.3.08. On 4.3.08 the girl was taken into custody from the house of the petitioner by the Crl.R.P.No. 1970 of 2008 2 S.H.O, Alappuzha and produced before the J.F.C.M, Kannur who was holding charge of the Addl. Chief Judicial Magistrate, Thalassery. The S.H.O, Alappuzha also filed a report before the J.F.C.M, Kannur to the effect that Neethu had gone with the revision petitioner and she was residing in the house of the revision petitioner. However, the J.F.C.M, Kannur, enquired with the girl and found that she had no complaints. She was directed to be produced before the Addl. Chief Judicial Magistrate, Thalassery on 6.3.08. On 4.3.08 she went home along with her mother and grandfather. 6.3.08 was a hartal day. Therefore, the case was posted to 10.3.08 before the Addl. Chief Judicial Magistrate, Thalassery. On 10.03.08, the case was adjourned to 19.3.08 for the appearance of the girl. On 19.3.08, Nijala the mother of the girl filed a petition before the Addl. Chief Judicial Magistrate to the effect that since the revision petitioner had administered some intoxicating drug to her daughter, she was suffering from some mental disorder. A Medical certificate issued by Dr.K.P.V.Narayanan was also produced. The said doctor had certified that the girl was under his treatment for impulse control disorder with adjustment disorder from 9.3.08. Since the mother Crl.R.P.No. 1970 of 2008 3 of the girl wanted her private complaint to be dismissed as not pressed, her request was acceded to by the Chief Judicial Magistrate who dispensed with the attendance of the girl before court and closed the matter. The revision petitioner thereupon filed Writ Petition(Crl) No.78 of 2008 before this Court seeking a writ of habeas corpus, alleging that the girl was under the illegal custody of her mother and grand father. He also stated that on 20.2.08, a joint application had been filed by him and the girl before the Registrar at Alappuzha under the Special Marriage Act for solemnisation of the marriage under that Act and that it was while the marriage was scheduled to take place on 4.3.2008 that the girl was forcibly taken from his house, at the instance of the mother of the girl. In order to ascertain the truth or otherwise of the allegations made by the revision petitioner, the Division Bench of this Court appointed an Advocate Commissioner to visit the place of residence of the alleged detenue and to submit a report before this Court after interacting with her. But the petitioner did not remit the Commissioner's batta and thereby did not avail of the opportunity given to him to substantiate his contention. When the order of the Addl. Chief Judicial Magistrate dated 19.3.08 was Crl.R.P.No. 1970 of 2008 4 made mention of before the Division Bench, it was observed that if the petitioner has got any grievance against the said order for any reason, it is open to him to challenge the same in appropriate proceedings, besides in filing any private complaint. It was represented on behalf of the revision petitioner before the Division Bench that he has already filed a complaint before the Police. Leaving open the remedies available to the petitioner, the writ petition was closed by this Court on 31.3.08. Thereafter, the revision petitioner moved the Chief Judicial Magistrate, Alapuzha under Section 97 Cr.P.C by filing CMP No.1636 of 2008. That petition was dismissed holding that the cause of action alleged was at Thalassery . It is thereafter that the petitioner has filed the present revision petition challenging the order passed by the Addl. Chief Judicial Magistrate, Thalassery. 3. I heard Advocate Sri.P.Chandasekhar, the learned counsel appearing for the revision petitioner; Adv. Sri.K.P.Hareendran, the learned counsel appearing for the 1st respondent, Nijala and Adv.C.M.Nazar, the learned Public Prosecutor. 4. The learned counsel for the revision petitioner made the following submissions before me in support of the revision:- Crl.R.P.No. 1970 of 2008 5 In view of the report submitted by the SHO Alappuzha before the J.F.C.M, Kannur, the learned Magistrate ought to have conducted an enquiry about the same by securing the presence of the girl and asking whether the girl wants to marry the revision petitioner. It was illegal on the part of the Magistrate in depriving the girl an opportunity to do so. In fact, going by the averments in the petition filed by the mother of the girl, Nijala there cannot be any doubt that it was actually a petition under Section 98 Cr.P.C though a wrong provision of law was quoted in the said petition. Since the girl in question is aged 23 years, on her production before the court, she should have been restored to her liberty as provided under Section 98 Cr.P.C. That has not been done. The petitioner is a taxi driver capable of looking after the girl. 5. The learned Public Prosecutor submitted that in the light of the decision of the Bombay High Court in Praveen Singh and another v. Biharilal Singh and another (1989 Crl.L.J 1386), the person against whom the complaint was filed and search warrant was issued under Section 97 Cr.P.C has no right of hearing, even if he is the husband of the alleged detenue. 6. The petitioner is a person who was unable to pay even the Crl.R.P.No. 1970 of 2008 6 Commissioner's batta ordered by this Court for ascertaining the wishes of the girl . It is such a person who claims to come forward with a subsisting claim to marry the girl. 7. Advocate Sri.Hareendran, the learned counsel appearing for the 1st respondent made the following submissions:- The petitioner is only an autorickshaw driver and he had come to Thalassery for fetching a job. Neethu was a 2nd year M.Sc student. The revision petitioner gave a missed call to her mobile phone and when the girl responded, he represented to her that he is a Computer Engineer at Alappuzha. That is how he allured the girl to Alappuzha. On reaching Alappuzha, the girl came to know that she was trapped by the revision petitioner. The girl had lost her father at her young age. She was being looked after by her mother and grandfather. She has filed an affidavit to the effect that she was under great mental turmoil after she was produced before the J.F.C.M, Kannur and she is perfectly hail and hearty and happy in the custody of her mother and grandfather. There is no reason to disbelieve the said affidavit by the girl sworn to before a Notary Public. 8. May be it was carried away by the rosy promises given by Crl.R.P.No. 1970 of 2008 7 the petitioner that the girl was forced to go with him thinking that he was a Computer Engineer. But on reaching Alappuzha she realised that she was under a trap. But for the timely intervention of the mother by moving the Magistrate, the girl would have been cheated and irreparable damages would have been caused to her even marring her marriage prospectus. I am not inclined to direct the Magistrate to conduct an enquiry for ascertaining the wishes of the girl who might have been mystified by infatuation of youth coupled with the sugar coated promises given by the petitioner who was not even willing to spend Rs.10,000/- towards the Commissioner's batta to ascertain the wishes of the girl. I am sure that such a person has no genuine love or affection for the girl. I, therefore, do not find any reason to interfere with the impugned order passed by the learned Magistrate. This Crl.R.P. is accordingly dismissed. Dated this the 29th day of July, 2008. V. RAMKUMAR, JUDGE sj