IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3146 of 2005()
1. VELAYUDHAN, S/O.RARICHAN,
... Petitioner
2. GIRISH, S/O.APPU,
Vs
1. SHYAMALA SATHIYAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.JESWIN P.VARGHESE
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :03/06/2009
O R D E R
C.T. RAVIKUMAR, J.
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CRL. M..C. NO. 3146 OF 2005
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Dated this the 3rd day of June, 2009
ORDER
1. Petitioners are accused in C.C No. 97/2005 on the files of the
Chief Judicial Magistrate, Kozhikode. Its genesis is from Annexure-A
complaint filed by the 1st respondent, alleging commission of offences
punishable under Section 344, 346, 347 read with 34 of the Indian Penal
Code, by the petitioners. As per Annexure-A complaint, the husband of the
1st respondent/ defacto complainant is under illegal confinement of the
petitioners and according to her, her husband was last seen along with them
and thenceforth, she is in the dark on his whereabouts. It is stated therein
that he is so missing from 9.2.2004 onwards. The learned Magistrate took
cognizance on Annexure-A complaint and issued summons to the
petitioners. The petitioner have filed the above Cr.M.C seeking to quash
the entire proceedings before the Chief Judicial Magistrate Court,
Kozhikode in C.C No.97/2005.
2. The case of the 1st respondent as could be seen from Annexure-
A, is that the accused persons in furtherance of their common intension
Crl.M.CNo.3146 of 2005 2
wrongfully confined her husband with a view to extort his property. Per
contra the counsel for the petitioners brought to my attention to certain
relevant and material facts which would belie the entire allegations and
would throw light to the absolute absence of ingredients to constitute the
offenses alleged against them. Earlier the 1st respondent had filed a
complaint as C.M.P No.707/04 with the same set of allegations before the
Judicial First Class Magistrate Court-III, Kozhikode seeking to issue a
general search warrant. However, the learned Magistrate dismissed the
same as on 6.3.2004. Though, initially, a crime was registered as Crime
No.78/2004, again with the same set of allegations at Alathur Police station,
the police have referred the matter “as further action dropped”because the
husband of the 1st respondent, Mr. Sathiyan, the man alleged to be missing,
appeared in the police station and gave statement to the contrary. He had
specifically stated that he was an absolutely free man and not under any
sort of confinement. Against the said order of the learned Magistrate in
Crl.M.C No.707/04, the 1st respondent had filed Crl.R.P 24/04 before the
Sessions Court, Kozhikode. The court summoned the case diary in Crime
No.78/04 and perused the entire diary as is evident from the Annexure-F
order dated 28.7.04 in Crl.R.P No.24/04. In this context paragraph 7 of
Annexure-F is worthy to be extracted and the same reads as hereunder:-
Crl.M.CNo.3146 of 2005 3
I have also perused the other documents produced
in this case: wherein it is seen that Sathiyan had
approached the Hon’ble High Court of Ketrala for
police protection from the harassment of the wife
and her family members. It is also seen that the
petition before the Matrimonial Court is also filed
and another application is filed before the court of
the J.F.C.M, Koyilandy as well against the husband.
So, it is very clear from the documents available in
this case that the husband and wife are fighting
each other and the husband before the S.I of Police
had made a statement to the effect that he is not
under illegal custody of anybody. For an action u/s
97 Cr.P.C what is required is that if any District
Magistrate, Sub Divisional Magistrate or a
Magistrate of the First Class has reason to believe
that any person is confined under such
circumstance, that confinement amounts to an
offence, then he may issue a search warrant. So,
there must be materials to show that there is reason
to believe that a person is confined and that it
amounts to an offence. Here, from the materials
available, it has come out that the husband of the
revision-petitioner is not at all confined and he had
stated before the police regarding the same and
further he had moved an application before the
Hon’ble High Court for police protection from the
wife and the members of the family of the wife.
When that is the circumstance, I think the learned
Magistrate has correctly appreciated and analysed
the facts and dismissed the application u/s 97
Cr.P.C. It does not suffer from any infirmity at all.
Therefore the revision is devoid of any merit and
the same is only to be dismissed and I do so.
3. Another most important aspect is that the person alleged to be
missing illegally confined, himself had approached this court by filing
W.P.C No.6144/04 with a prayer for police protection. In fact the said
Crl.M.CNo.3146 of 2005 4
petition was filed against his brother- in- laws who are the brothers of the
1st respondent. The very fact that the person alleged to be missing himself
had approached this court during the relevant time by filing a writ petition
itself is sufficient to sustain the contentions of the petitioners. That apart,
the 1st respondent herself filed an affidavit in C.C No.871/04 before the
Judicial Magistrate Court, Koyilandy on 30.11.04 and the same would also
take me to the conclusion that Annexure-A is a complaint undeserving
prosecution on its basis. A copy of the same has been produced in this
Crl.M.C as Annexure-G. A bare perusal of Annexure-G would reveal that
the 1st respondent is fully aware of the whereabouts of her husband and
according to her he is abroad. It would also reveal that she is absolutely
astute to the apsect that he is a free man and he is employed there. Under
the circumstances exapatiated above no person could believe that the 1st
respondent is absolutely unaware of the whereabouts of her husband. Infact
there are pending disputes between them including matrimonial cases. The
petitioner herself admits that one of the petitioners herein is none other than
the nephew of her husband and the other was a helper of her husband. In
the circumstances it can only be said that Annexure-A complaint is filed
ulterior motives and also with a mala fide intension.
4. The court cannot be utilised for any oblique purpose and
CRL.M.CNo.3146 of 2005 5
therefore, in view of the above discussions I am of the view that the
criminal proceedings initiated by filing of Annexure-A complaint is an
abuse of process of the court. I have already found that regard to the
materials before me I am fully convinced that the ingredients of the offences
alleged against the petitioners are not satisfied in Annexure-A and that even
if the same is allowed to be proceeded with the chance of an ultimate
conviction is bleak. It would also result in wasting of the precious judicial
time. In these cirumstances, I think this is an eminently fit case to invoke the
inherent jurisdiction under Section 482 of the Code of Criminal Procedure.
5. Accordingly, the entire proceedings before the Chief Judicial
Magistrate, Kozhikode in C.C No.97/o5 based on Annexure-A complaint is
quashed and consequently, no proceedings shall be continued against the
petitioners in C.C No.97/05.
The criminal M.C is allowed as above.
(C.T. RAVIKUMAR, JUDGE)
spc