Kerala High Court
Suhara vs Muhammed Jaleel on 25 November, 2021
Crl.M.C.No.4659/2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TH
THURSDAY, THE 25 DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,
1943
CRL.MC NO. 4659 OF 2020
AGAINST THE ORDER/JUDGMENT IN CC 324/2020 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM, PALAKKAD
PETITIONER/ACCUSED:
SUHARA,
AGED 45 YEARS,
W/O.ABDUL RASHEED, KILAYIL HOUSE,
MANNURKODE (P.O), OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN-679 502.
BY ADV NIREESH MATHEW
RESPONDENT/DE FACTO COMPLAINANT & STATE:
1 MUHAMMED JALEEL,
AGED 39 YEARS, S/O.AYAMU,
KADAYAN KADAN HOUSE, VAZHANKADA (P.O),
MALAPPURAM DISTRICT, PIN-679 357.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.
BY ADV SRI.G.SREEKUMAR (CHELUR)
THIS CRIMINAL MISC.CASE HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.4659/2020 2
ORDER
The petitioner is the accused in crime No.141 of 2020 of
Ottappalam Police Station, which was registered against her
alleging commission of offences punishable under Section 324
IPC and Section 75 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short JJ Act).
2. The facts of the case is as follows: The daughter of the
petitioner was married to the 1 st respondent and in the said
wedlock a female child namely, Fathimathul Jasla was born. The
daughter of the petitioner died at the matrimonial house and
there are some litigations and disputes going on in connection
with the death of her daughter in the residence of the 2 nd
respondent. O.P No.608 of 2015 was filed by the petitioner
before Family Court, Ottappalam seeking custody of the child
under Section 7(1)(g) and Section 10 of the Family Court Act,
1984. In the said original petition interim order was passed
granting visitorial rights to the petitioner, to meet the child,
whose regular custody is with the 1 st respondent herein. As per
which, the 1st respondent, was directed to produce the child
before the Family Court once in a month in the court premises at
10 am, so as to enable the petitioner to have interaction with the
child till 4 pm on that day. In compliance of the said direction, on
15.02.2020 the child was brought to the court and temporary
custody was granted to the petitioner. Later, at 4 pm the custody
of the child was returned to the Sheristadar of the Family Court
who, in turn released the child to the 1st respondent herein.
However, it is learned later that a complaint was registered by
the 1st respondent to the effect that the petitioner herein caused
injuries in the ear of the child by using ear buds.
3. Annexure-A FIR was registered by the police on the
basis of the said complaint and after completing the investigation,
Annexure-B final report was submitted for the offences mentioned
above. The specific case of the petitioner is that no offence is
made out as against the petitioner, even if the entire allegations
are accepted for its face value and he seeks to quash the
proceedings invoking powers of this Court under Section 482
Cr.P.C.
4. Heard Sri.Nireesh Mathew, learned counsel for the
petitioner and Sri.G.Sreekumar Chelur, learned counsel for the
1st respondent.
5. The learned counsel for the petitioner contends that as
per the stipulations contained in Section 324 IPC an ear bud
cannot be treated as a weapon so as to attract the offence
punishable. He also brought my attention to the statement given
by the witnesses, who are the Sheristadar of the Family Court
and also the other staff of the court, wherein it is mentioned that
while the child was returned to the Sheristadar by the petitioner
herein, no injuries were noted. Only when the 1 st respondent
came back with the allegation as contended above, they noticed
some stains in the ear of the child which looked like that of blood.
However, it is stated by them that there were no visible injuries.
In such circumstances, petitioner is seeking for an order
quashing the proceedings.
6. On the other hand, the learned counsel for the 2 nd
respondent would contend that, the contentions put forward by
the learned counsel for the petitioner cannot be considered in a
proceedings under Section 482 Cr.P.C as essentially those are
matters to be decided on evidence. He also referred to various
kinds of disputes pending between the parties including the
criminal proceedings falsely initiated against the 1 st respondent
for serious offences of Protection of Children from Sexual
Offences (POCSO) Act, at the instance of the petitioner herein. In
such circumstances, he prays for dismissal of the Crl.M.C.
7. The crucial aspect to be considered is whether Section
324 IPC is attracted. Section 324 IPC reads as follows:
"324. Voluntarily causing hurt by dangerous
weapons or means.--Whoever, except in the case
provided for by section 334, voluntarily causes hurt
by means of any instrument for shooting, stabbing
or cutting, or any instrument which, used as
weapon of offence, is likely to cause death, or by
means of fire or any heated substance, or by means
of any poison or any corrosive substance, or by
means of any explosive substance or by means of
any substance which it is deleterious to the human
body to inhale, to swallow, or to receive into the
blood, or by means of any animal, shall be punished
with imprisonment of either description for a term
which may extend to three years, or with fine, or
with both."
Stipulations contained in Section 324 IPC, specifically
contemplates the nature of the weapons so as to attract the
aforesaid offence. Going by the said description, the weapon
itself described as an instrument for shooting, stabbing or
cutting, or any instrument which, if used as weapon of offence, is
likely to cause death. In this case the allegation is that the
petitioner caused injury to her grant child by using an ear bud.
Ear bud is intended for cleaning the ear and under no stretch of
imagination, it can be treated as a weapon, which comes within
the description of weapon as mentioned under Section 324 IPC.
8. The other offence alleged is under Section 75 of the JJ
Act. Section 75 of the JJ Act reads as follows:
"Whoever, having the actual charge of, or control
over, a child, assaults, abandons, abuses, exposes
or wilfully neglects the child or causes or procures
the child to be assaulted, abandoned, abused,
exposed or neglected in a manner likely to cause
such child unnecessary mental or physical
suffering, shall be punishable with imprisonment
for a term which may extend to three years or with
fine of one lakh rupees or with both:
Provided that in case it is found that such
abandonment of the child by the biological parents
is due to circumstances beyond their control, it
shall be presumed that such abandonment is not
wilful and the penal provisions of this section shall
not apply in such cases:
Provided further that if such offence is committed
by any person employed by or managing an
organisation, which is entrusted with the care and
protection of the child, he shall be punished with
rigorous imprisonment which may extend up to five
years, and fine which may extend up to five lakhs
rupees:
Provided also that on account of the aforesaid
cruelty, if the child is physically incapacitated or
develops a mental illness or is rendered mentally
unfit to perform regular tasks or has risk to life or
limb, such person shall be punishable with rigorous
imprisonment, not less than three years but which
may be extended up to ten years and shall also be
liable to fine of five lakhs rupees."
9. In order to attract the aforesaid offence, the child must
have been subjected to assault, abuse or expose by the person
who was having actual charge of control over the child. In this
case the materials available on record do not contain any of the
allegations so as to attract the aforesaid offence as well. Child
was in the custody of the petitioner at the relevant time and
through out such time, the petitioner and the child were in the
court premises. There is no evidence including medical evidence
to establish that the child has sustained any injury, or subjected
to assault as above.
10. Apart from the above, in order to attribute culpability
upon a person, there must be a criminal intention on the part of
the accused, while committing the act alleged. In this case, from
the materials available on record, the same cannot be found.
This is because, the alleged victim is the granddaughter of the
petitioner whose temporary custody was provided by the court as
per various orders. Admittedly, there are serious disputes
pending between the petitioner and the 1 st respondent. The place
of occurrence of incident is stated to be within the court
premises. It is also discernible from the records, at the time
when the child was returned by the petitioner to the Sheristadar,
no injuries were noted. The staff of the court also could not
notice any injury on the child. From the analysis of the entire
facts and circumstances, no prudent person can come to a
conclusion that a person would make an attempt to cause an
injury to his/her grand child, by using an ear bud as a weapon.
11. In State of Haryana v. Ch. Bhajan Lal ( 1992 Supp
(1) SCC 335), the Honourable Supreme Court laid down various
guidelines for invoking the powers under section 482 of Cr.P.C. As
per the said guidelines, one of the circumstances under which the
power can be invoked, is as extracted here under:
"Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused."
After referring the aforesaid guidelines, the Honourable
Supreme Court, observed in a recent judgment in Mahendra
v.State of Karnataka (2016 (6) KLT Online 1128 SC) as
follows:
"Based on the above precedent, the High Court
while exercising its power under section 482 of the
Cr.P.C to quash the FIR instituted against the
respondent should have applied the following two
tests: I) whether the allegations made in the
complaint, prima facie constitute an offence; ii)
whether the allegations are so improbable that a
prudent man would not arrive at the conclusion
that there is sufficient ground to proceed with the
complaint."
12. The facts and circumstances in this case reveal that, it
is a case comes within the above categories. Thus, when all these
aspects are taken into consideration and also the trivial nature of
the allegations raised, the only conclusion possible is that this is
a fit case in which powers of this Court under Section 482 Cr.P.C
can be invoked.
Accordingly, I allow this Crl.M.C and quash Annexure-A
FIR and Annexure-B final report in C.C.No.324 of 2020 on the file
of the Judicial First Class Magistrate Court, Ottappalam, which
arises from Crime No 141/2020 of Ottapalam Police Station and
all further proceedings pursuant thereto.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG/25.11.21
APPENDIX OF CRL.MC 4659/2020
PETITIONER ANNEXURE
ANNEXURE A TRUE PHOTOCOPY OF THE
FIR IN CRIME NO.
141/2020 OF OTTAPALAM
POLICE STATION DATED
27.02.2020.
ANNEXURE B TRUE PHOTOCOPY OF THE
FINAL REPORT IN CRIME
NO. 141/2020 OF
OTTAPALAM POLICE
STATION DATED
13.06.2020.
