Shibu @ Abubaker Sidiq and Others vs State of Kerala and Mubeena

Thomas P. Joseph, J.—Petitioners are accused 1 to 5, in Crime No. 102 of 2007 of Koratty Police Station and C.C. No. 1185 of 2007 of the Court of learned Judicial First Class Magistrate, Chalakkudy for offence punishable u/s 498A of the Indian Penal Code. That case was registered on Annexure-C, complaint preferred by the second Respondent before learned Judicial First Class Magistrate-I, Chalakkudy and which was forwarded to the police for investigation. The police after investigation submitted final report against Petitioners and another (sixth accused) (Annexure-D is the copy of the final report). Petitioners and the sixth accused moved this Court in Crl.M.C. No. 1755 of 2008 requesting to quash proceeding against them. This Court by order dated July 30, 2008 dismissed the Crl.M.C on the strength of a composition. Since second Respondent did not appear in that proceeding this Court was not inclined to accept the composition. It was further contended in this Court that allegation do not justify proceeding u/s 498A of the IPC. This Court permitted Petitioners in Crl.M.C. No. 1755 of 2008 to raise the plea before learned Magistrate u/s 239 of the Code. Thereon accused 2 to 5 (Petitioners 2 to 5) filed C.M.P. No. 10555 of 2008 before the learned Magistrate (in C.C. No. 1185 of 2007) requesting to discharge them u/s 239 of the Code. Learned Magistrate considered the materials and by order dated July 27, 2009 refused to discharge Petitioners 2 to 5 observing that there is a prima facie case made out against Petitioners 2 to 5. Hence this criminal miscellaneous case praying that Annexure-F, order passed by the learned Magistrate and proceeding in C.C. No. 1185 of 2007 be quashed.

The second Respondent though served, remains absent. I have heard learned Counsel for Petitioners and the learned Public Prosecutor. Learned Counsel argued that there are no sufficient materials to put Petitioners on trial. Learned Public Prosecutor contended that allegations are sufficient to proceed against Petitioners.

So far as first Petitioner is concerned, it is seen from Annexure-F, order on C.M.P. No. 10555 of 2008 that the request to discharge u/s 239 of the Code was made only by Petitioners 2 to 5. u/s 239 of the Code the question is whether the charge against Petitioners is groundless. I have been taken through Annexure-C, complaint. Learned Public Prosecutor has also read out statement of witnesses questioned by the police based on which Annexure-D, final report is filed. The witnesses to the alleged incident have stated about the acts of the first Petitioner. About Petitioners 2 to 5, there is only a general statement that the accused persons subjected the second Respondent to physical and mental cruelty. They have not specifically mentioned any overt act against Petitioners 2 to 5.

In Annexure-C, complaint it is seen that there are specific allegations made against first Petitioner/first accused. There is also reference to the first Petitioner demanding more money from the parents of second Respondent. In the light of the allegations made in Annexure-C, complaint, contention that the charge against the first Petitioner/first accused is groundless cannot be accepted. The question whether those allegations are true or not, is a matter which the trial court has to decide.

So far as Petitioners 2 to 5 are concerned, it is seen from Annexure-C, complaint that specific allegations are directed against first Petitioner/first accused. In page No. 8 of Annexure- C, complaint it is stated that all the accused conspired together and subjected second Respondent to physical and mental cruelty. It is further stated that the accused have a greed for money and that attempt of the accused was to somehow extract money from the second Respondent. It is also alleged that accused 2 to 5 (including Petitioners 2 to 5) had on several occasions talked to the second Respondent improperly and even put her to starvation.

On going through Annexure-C, complaint as well as the statements of witnesses it is seen that so far as Petitioners 2 to 5 are concerned, there are only vague and general allegations made by the second Respondent. The Supreme Court in Preeti Gupta and Another Vs. State of Jharkhand and Another, has alerted the Courts about the tendency to falsely implicate close relatives of the husbands also in prosecutions u/s 498A of the IPC and the need to scrutinize the allegations in the complaint with great care and circumspection. On going through the materials on record I am inclined to hold that there are no sufficient allegations so far as Petitioners 2 to 5 accused 2 to 5 are concerned (I am not referring to the allegations against the sixth accused since he is not a party before me) to attract the offence u/s 498A of the IPC and put them on trial. I am inclined to hold that charge against Petitioners 2 to 5 is groundless. Learned Magistrate ought to have allowed.

Resultantly this criminal miscellaneous case is allowed in part to the extent that Annexure-F, order is set aside, C.M.P. 10555 of 2008 (in C.C. No. 1185 of 2007 of the Court of learned Judicial First Class Magistrate, Chalakkudy) is allowed and proceeding in C.C. No. 1185 of 2007 against Petitioners 2 to 5/accused 2 to 5 are quashed and they are discharged u/s 239 of the Code. The criminal miscellaneous case to the extent it concerned first Petitioner/first accused will stand dismissed.