IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3294 of 2005(B)
1. ASIF MASOOD K.P., S/O. C.G. POOKOYA,
... Petitioner
2. DR. C.G. POOKAYA, HOUSE NO.V/356,
3. HAJIROMMABI, W/O. DR.C.G. POOKOYA,
4. SABEENA BEEGAM, DR.C.G. POOKOYA
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SUB INSPECTOR OF POLICE, PANANGADU.
3. DR. BI. P.P., D/O. HAMZAKOYA,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :05/06/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.3294 of 2005
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Dated this the 5th day of June, 2007
ORDER
Petitioners are husband, father-in-law, mother-in-law and sister-
in-law respectively of the defacto complainant, ie. the 3rd respondent
herein. The 3rd respondent filed a complaint alleging commission of
the offences punishable, inter alia, under Section 498 A I.P.C against
all the 4 accused persons. That complaint was referred to the police
under Section 156(3) Cr.P.C. The police after investigation filed final
report raising allegations against the 1st accused-the husband alone
under Section 498 A I.P.C. Dissatisfied with the final report
submitted by the police, the petitioner filed the complaint again (it is
the same complaint which is filed, it is submitted) complaining about
non inclusion of accused 2, 3 & 4 on the array of accused. The
learned Magistrate after following the procedure under Section 200
Cr.P.C, issued process against accused 2 to 4. It appears that both
the cases – on the basis of the final report against the 1st accused and
the case against accused 2 to 4 on the private complaints are pending
before the same court. The petitioners have now come to this Court
with a prayer that the proceedings initiated against the petitioners
may be quashed invoking the jurisdiction under Section 482 Cr.P.C.
The 3rd respondent/complainant has entered appearance through
Crl.M.C.No.3294 of 2005 2
counsel. The counsel for the respondent contends that this petition is
technically not sustainable in as much as the 1st accused who is the
accused in the police charge case and accused 2 to 4 who are accused
in a different case, have chosen to come together before this Court
with this petition under Section 482 Cr.P.C. That technicality does
not at all persuade me to reject the challenge in this Crl.M.C in an
omnibus manner.
2. The two proceedings are closely inter related and
connected that the conduct of the 4 accused persons coming together
before this Court and seeking identical relief cannot be faulted. The
proceedings against all of them have been initiated on the basis of a
common private complaint against all the four. In these
circumstances, that technicality does not persuade me to reject the
Crl.M.C at the threshold.
3. I must alertly remind myself of the nature, quality and
contours of the jurisdiction that I am called upon to exercise. I am
requested to invoke and exercise the extraordinary inherent
jurisdiction available under Section 482 Cr.P.C. It is trite that such
jurisdiction is not to be invoked as a matter of course. Such
jurisdiction can be invoked only sparingly and in exceptional cases,
that too, only in aid of justice. The mere possibility of discharge or
acquittal at later stages of the trial cannot therefore persuade the
Crl.M.C.No.3294 of 2005 3
Court to invoke the powers under Section 482 Cr.P.C to prematurely
terminate the proceedings against the accused.
4. What are the reasons which the petitioners want to urge to
justify the prayer for premature termination of proceedings ? First of
all it is contended that the complaint is filed after divorce. After
discussions at the Bar, the learned counsel for the petitioners submits
that there is no absolute bar against cognizance being taken on the
basis of a complaint filed by a divorced wife. The allegations of
cruelty relate to the period during the period of valid marriage and
the mere fact that the complainant has come to this Court after
divorce is not sufficient to non suit her at the threshold. I do agree
with the learned counsel for the petitioners that the allegations raised
by such a divorced wife deserve to be considered carefully. To accept
the principle that a divorced wife cannot file a complaint is dangerous
and must lead to disastrous consequences. A husband guilty of
cruelty need only divorce his wife anticipating proceedings under
Section 498 A I.P.C. The mere fact that the 3rd respondent had filed
the complaint after divorce is not in these circumstances sufficient to
persuade me to invoke the powers under Section 482 Cr.P.C.
5. The learned counsel for the petitioner is correct in his
submission that the Magistrate cannot mechanically take cognizance
of the offence under Section 498 A I.P.C. The Section offers pregnant
possibility for mischief at the hands of an unscrupulous wife/divorced
Crl.M.C.No.3294 of 2005 4
wife and therefore I am in agreement with the learned counsel for the
petitioners that any court called upon to consider such a complaint
must employ due care and caution while considering such a
complaint. Of course it is trite that materials cannot be weighed in
golden scales by the criminal court at that stage at the threshold. All
that the Court is to consider is whether there is “sufficient ground to
proceed”. I agree with the learned counsel for the petitioner that this
consideration must be alertly undertaken. The question is whether
such application of mind has been employed by the learned
Magistrate in the facts of this case.
6. The counsel contends that the parties belong to
Lakshadweep, where there is no practice of dowry at all. If law were
to be followed strictly, there could be no practice of dowry anywhere
in India at this point of time in history. Acceptance of dowry is
prohibited under law and in spite of that, the legislature was
constrained to enact provisions like Section 498 A in the I.P.C by
amendment and inclusion. Therefore, the fact that the customary law
permitting or authorising the payment of dowry is not available in the
Lakshadweep Island is no reason for the learned Magistrate not to
take cognizance of the alleged offence under Section 498 A I.P.C.
7. The crucial and the final question to be decided is whether
cognizance taken by the learned Magistrate is bad for the reason that
adequate data is not furnished. I shall scrupulously avoid any detailed
Crl.M.C.No.3294 of 2005 5
discussion on merits about acceptability of the allegations or
credibility of the data. Suffice it to say that I am not persuaded to
agree that at this stage of the proceedings, powers under Section 482
Cr.P.C can or need be invoked on the ground that there is no
sufficient allegations and data to attract culpability for the offence
punishable under Section 498 A I.P.C against anyone of the accused.
It follows from the above discussion that it is not necessary to invoke
the jurisdiction under Section 482 Cr.P.C. The challenge raised must,
in these circumstances, fail.
8. In the result, this Crl.M.C is, dismissed. I may hasten to
observe that I have chosen only to hold that the powers under Section
482 Cr.P.C need not be invoked and the dismissal of this Crl.M.C will
not in any way fetter the rights of the petitioner to raise all
appropriate and relevant contentions before the learned Magistrate in
the course of the trial. All their rights would survive including the
right to claim discharge, I make it clear.
9. Send back the records forthwith to the learned
Magistrate.
(R.BASANT, JUDGE)
rtr/-