Mahesh.M.S vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C’ for short), seeking to quash all further proceedings in C.C.No.12/2022 on the files of Judicial First Class Magistrate Court, Vatakara, arose out of Crime No.1184/2021 of Vatakara Police Station, Kozhikode. The petitioner is the 2nd accused in this case.

Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents.

In this matter, initially FIR was registered under Section 57 of the Kerala Police Act, 2011 (`K.P Act' for short) when the defacto complainant, who is none other than the husband of the 1st accused lodged a complaint before the police stating that the wife of the 1st accused was found missing from 6 a.m on 06.11.2021 onwards. Subsequently the matter got investigated and found that the 1st and the 2nd accused/petitioner herein committed offences punishable under Section 57 of the K.P Act and 75 of the Juvenile Justice (Care and Protection of Children) Act (`JJ Act’ for short) read with Section 109 of the Indian Penal Code (`IPC' for short). Now the allegation is that at 6 a.m on 6th November, 2021, the 1st accused, who reached her mother's father's house in connection with the funeral function of the brother of her father, the 2nd accused persuaded her to go along with him and accordingly accused 1 and 2 left 2 minor children, aged 9 and 6 years respectively and thereby committed the above offences.

While canvassing quashment of the proceedings, it is argued by the learned counsel for the petitioner that the petitioner is innocent and none of the offences would attract against him and he did not abet the crime in any manner. According to the learned counsel for the petitioner, as far as the offence under Section 75 of the Juvenile Justice Act is concerned, the same would not attract against the petitioner, since he did not have any actual control or custody of the minor alleged to be left by the 1st accused. He also would submit that the 1st accused eloped with the 2nd accused voluntarily and in such a case, offence under Section 57 of the K.P Act or the abetment alleged against this accused would not attract, prima facie, and therefore the case against the 2nd accused, who is a third party, is liable to be quashed. It is submitted that there is no aid, instigation or conspiracy on the part of the petitioner to commit the offences. He would also submit that even otherwise the 1st accused left the defacto complainant at the mother's father's house and therefore Section 75 of the JJ Act would not attract on any ground.

I have gone through the prosecution records and the allegation is that at 6 a.m on 6th November, 2021, the 1st accused, who reached her mother's father's house in connection with the funeral function of the brother of her father, the 2nd accused persuaded her to go along with him and accordingly accused 1 and 2 left 2 minor children, aged 9 and 6 years respectively and thereby committed the above offences.

The  prosecution  records  would  reveal  that  the  1st accused, who is the mother of the 2 minor children, while she went to mother's father's house in connection with a funeral, voluntarily went along with the 2nd accused after keeping the minors at the said house. Therefore, if at all offence under Section 57 of the K.P Act as well as Section 75 of the JJ Act would attract against the 1st accused, it could not be held that offence under Section 75 of the JJ Act or Section 57 of the K.P Act would attract against the 2nd accused, who did not have any actual custody or control over the minors. The prosecution case is that the petitioner abetted the commission of the above offences by the accused. The prosecution records do not, prima facie, show that the petitioner herein in any way instigated the 1st accused to go along with him and the same is a voluntary act at the instance of the 1st accused. If so, it is not safe to hold that, prima facie, offences specifically alleged against the 2nd accused/petitioner is made out, so as to proceed further against him. Accordingly, this petition is liable to succeed.

In the above circumstances, this Criminal Miscellaneous Case stands allowed. Accordingly all further proceedings in C.C.No.12/2022 on the files of the Judicial First Class Magistrate Court, Vatakara, arising out of Crime No.1184/2021 of Vatakara Police Station, Kozhikode District, against the 2nd accused/petitioner stand quashed.