Kerala High Court
Sylvester Gomez @ Cyril vs State Of Kerala on 2 November, 2024
2024:KER:81597
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
SATURDAY, THE 2ND DAY OF NOVEMBER 2024 / 11TH KARTHIKA, 1946
CRL.MC NO. 6219 OF 2024
CRIME NO.981/2021 OF MARADU POLICE STATION, ERNAKULAM
CC NO.622 OF 2023 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- VIII,
ERNAKULAM
PETITIONERS/ACCUSED 2 TO 6:
1 SYLVESTER GOMEZ @ CYRIL
AGED 54 YEARS
S/O. (LATE) A.J.GOMEZ, AGED 54 YEARS JNRA-76B,
JANASHAKTI NAGAR, PONGUMOODU, THIRUVANANTHAPURAM,
PIN - 695011
2 U.R.FERNANDES
AGED 86 YEARS
S/O. (LATE) C.M.FERNANDES, AGED 86 YEARS, TC
11/210, A-65, KANAKA NAGAR, VELLAYAMBALAM,
KOWDIAR.P.O., THIRUVANANTHAPURAM, PIN - 695003
3 ROSE FERNANDES
AGED 78 YEARS
W/O.U.R.FERNANDES, AGED 78 YEARS, TC 11/210, A-65,
KANAKA NAGAR, VELLAYAMBALAM, KOWDIAR.P.O.,
THIRUVANANTHAPURAM, PIN - 695003
4 LORETTA FERNANDES
AGED 49 YEARS
D/O.U.R.FERNANDES, JNRA-76B, JANASHAKTI NAGAR,
PONGUMOODU, THIRUVANANTHAPURAM, PIN - 695011
Crl.M.C.No.6219 of 2024 2
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5 SHARMAINE FERNANDES
AGED 47 YEARS
W/O.BINU JACOB, 44/73-B, MATHA ROAD, MATHA NAGAR,
PAREEKADU, EROOR WEST P.O., THRIPUNITHURA,
ERNAKULAM, PIN - 682306
BY ADVS.SRI.SUMAN CHAKRAVARTHY
SMT.BREJITHA UNNIKRISHNAN
SRI.SUDEESH K.E.
RESPONDENTS/STATE/DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 NAVYA.S.L @ MARY JISHI
AGED 39 YEARS
D/O.C.SIVANANDAN @ GEORGE, MAVUTILA, CC NO.29/1986
C, D-14, ST.ANTONY ROAD, THYKOODAM, VYTTILA.P.O.,
KOCHI, PIN - 682019
R1 BY PUBLIC PROSECUTOR SRI.M.P.PRASANTH
R2 BY ADV.SMT. A.S.SANGEETHA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.6219 of 2024 3
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ORDER
Dated this the 2nd day of November, 2024
This Criminal Miscellaneous Case has been filed under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Accused numbers 2 to 6 in CC No.622/2023 on the files of
Judicial First Class Magistrate Court-VIII, Ernakulam arising
out of Crime No.981/2021 of Maradu Police Station are the
petitioners herein and they seek quashment of the above
proceedings.
2. Heard the learned counsel for the petitioners and
the learned counsel for the deacto complainant. Also heard
the learned Public Prosecutor in detail.
3. Shortly spelt, prosecution allegation is that the 1 st
accused is the husband of the de facto complainant, along
with accused Nos.2 to 6, who are the brother-in-law, parents
and sisters of the 1st accused subjected the de facto
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complainant to cruelty demanding more dowry and also
subjected her to hurt and sexual molestation, thereby
committed offences punishable under Sections 498-A, 354-D
and 323 read with Section 34 of the Indian Penal Code, 1860
(for short 'the IPC').
4. The learned counsel for the petitioners vehemently
canvassed quashment of this proceedings mainly urging that
as per the final report, based on the statement of the de facto
complainant, only general allegations raised against the
petitioners. According to her no ingredients to attract offences
under Sections 354-D or 323 are also made out. It is also
pointed out that even though there is allegation of assault by
the 1st accused, there is no allegation of assault by accused
Nos.2 to 6. Therefore, the entire matter would require
quashment as against the petitioners.
5. Strongly opposing the quashment of this matter, the
learned counsel for the de facto complainant read out the FIS
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which would show demand of dowry by accused Nos. 2 to 6
on the 1st week of December 2016 and also cruelty on their
part otherwise. Accordingly, the learned counsel for the de
facto complainant would submit that the matter would require
trial.
6. The learned Public Prosecutor though shared the
argument advanced by the learned counsel for the de facto
complainant, fairly submitted that the materials would not
prima facie suggest offence under Section 354-D of IPC.
7. On perusal of the FIS the prosecution allegation is
that marriage between the de facto complainant and 1 st
accused was solemnised on 31.10.2015 and they started to
reside at the matrimonial home thereafter. During her stay
at matrimonial home, the mother of the 1st accused procured
the key of the Almirah, where the gold ornaments of the de
facto complainant were kept and thereafter misappropriated
the same and sold the same. Further allegation is that all the
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accused knowingly demanded more dowry. The specific
allegation against the petitioners/accused Nos. 2 to 6 is that
in the 1st week of December, 2016 accused Nos. 2 to 6
reached the house of the defacto complainant while the de
facto complainant and her husband were in Kanpur in
connection with a conference, and demanded Rs.10 lakh as
dowry after selling the property of the parents of de facto
complainant. The specific allegation of physical assault as on
31.12.2016 is alleged against the 1 st accused. The allegation
against the petitioners further is that they kept the de facto
complainant at the house after turning on the gas stove with
intention to harm her.
8. On perusal of the prosecution records, no
ingredients to attract the offences under Section 354-D and
under Section 323 of IPC are made out prima facie. However,
the ingredients to attract the offence under Section 498-A
read with Section 34 of the IPC are made out from the
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prosecution allegation. In such a case, quashment of the
entire proceedings could not be considered. Therefore, this
petition is liable to succeed in part.
9. In the result, proceedings against the petitioners for
the offence under Section 354-D and under Section 323 of
IPC stand quashed while allowing continuance of prosecution
for the offence under Section 498-A read with Section 34 of
IPC.
10. It is submitted by the learned counsel for the
petitioners that the personal appearance of the petitioners
may be dispensed with. Considering the age of petitioners 2
and 3 as 86 and 78 respectively, personal appearance of the
petitioners 2 and 3 during trial can be exempted subject to
the condition that they shall file separate affidavits before the
trial court affirming that they shall not dispute their identity
or trial in their absence. At the same time the trial court is at
liberty to insist their presence also in appropriate stages of
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trial if their presence is absolutely necessary for questioning
them under Section 313 Cr.P.C and for pronouncing judgment.
Exemption from personal appearance sought for in
relation to the other petitioners stands dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
MJL
2024:KER:81597
PETITIONERS' ANNEXURES
Annexure -1 A TRUE COPY OF THE FIR AND FIS IN CRIME
NO.981/2021 OF MARADU POLICE STATION, ERNAKULAM
CITY
Annexure- 2 A TRUE COPY OF THE ORDER DATED 23.12.2023 IN M.C
10/2019 BY THE JFCM-V, THIRUVANANTHAPURAM
Annexure -3 A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE
FATHER OF THE DEFACTO COMPLAINANT BEFORE THE CITY
POLICE COMMISSIONER, ERNAKULAM DATED 31.12.2020
Annexure -4 A TRUE COPY OF THE STATEMENT GIVEN BY THE DEFACTO
COMPLAINANT'S FATHER SIVANANDAN @ GEORGE TO THE
POLICE ON 15.01.2021
Annexure -5 A TRUE COPY OF THE COMPLAINT PREFERRED BY THE 2ND
RESPONDENT BEFORE THE KERALA WOMEN'S COMMISSION
DATED 25.11.2017
Annexure -6 A TRUE COPY OF THE PETITION IN OP NO.192/2019
BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM
Annexure -7 A TRUE COPY OF THE COMPLAINT DATED 14.11.2017
SUBMITTED BY THE DEFACTO COMPLAINANT TO THE
WOMEN'S COMMISSION, THIRUVANANTHAPURAM
Annexure -8 A CERTIFIED COPY OF FINAL REPORT IN CRIME
NO.981/2021 OF MARADU POLICE STATION, ERNAKULAM
CITY
RESPONDENTS' ANNEXURES: NIL
/TRUE COPY/
PA TO JUDGE
