Kerala High Court
Taby Philip Thomas vs State Of Kerala on 7 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:82940
CRL.MC NO. 4509 OF 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY,THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.MC NO. 4509 OF 2018
CC NO.1264/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -
II, PARAVUR
PETITIONERS/ACCUSED 1 TO 3:
1 TABY PHILIP THOMAS
AGED 42 YEARS,S/O.THOMAS PHILIP,
NALUKETTIL HOUSE,KUSAVARKKAL,SAGARA 6/4,
KUDAPPANAKKUNNU.P.O,THIRUVANANTHAPURAM.
2 SUSAMMA THOMAS
AGED 70 YEARS,W/O.THOMAS PHILIP,
NALUKETTIL HOUSE,KUSAVARKKAL,SAGARA 6/4,
KUDAPPANAKKUNNU.P.O,THIRUVANANTHAPURAM.
3 THOMAS PHILIP
AGED 74 YEARS,NALUKETTIL HOUSE,KUSAVARKKAL,
SAGARA 6/4,KUDAPPANAKKUNNU.P.O,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.S.RAJEEV
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENTS/STATE:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682031.
2024:KER:82940
CRL.MC NO. 4509 OF 2018
2
2 JANNET
AGED 37 YEARS,D/O.LEELAMMA JACOB,
KATTUMPURAM,CHARUVILA PUTHENVEEDU,
MAMPALLYKUNNAM,CHATHANNOOR.P.O,
KOLLAM DISTRICT-691572.
BY ADVS.
SRI.M.KIRANLAL
SMT.LIYA ROSE KURIAN
SRI.MANU RAMACHANDRAN
SRI.R.RAJESH VARKALA
SRI.T.S.SARATH
SRI.RENJITH T.R., SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
07.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2024:KER:82940
CRL.MC NO. 4509 OF 2018
3
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.4509 of 2018
----------------------------------------------
Dated this the 07th day of November, 2024
ORDER
Petitioners are accused in C.C.No.1264/2016 on the file of
the Judicial First Class Magistrate Court (Temporary), Paravur.
The above case is taken cognizance based on a private
complaint filed by the 2nd respondent alleging offences
punishable under Sections 3 and 4 of the Dowry Prohibition
Act, 1961.
2. The prosecution case is that, the 1st petitioner had
married the 2nd respondent on 26.09.2002 as per customary
rites. Petitioners 2 and 3 are the parents of the 1st petitioner. At
the date of marriage, Rs.2 Lakhs was entrusted with petitioners
2 and 3. 30 sovereigns of gold ornaments were worn by the 2nd
respondent at the time of marriage. On 28.09.2002, at 8 pm,
except thali chain and two bangles, the accused had taken
the gold ornaments. It is also alleged that the 1st petitioner
took the 2nd respondent and two children to Gulf and
2024:KER:82940
CRL.MC NO. 4509 OF 2018
he mentally and physically harassed them. After returning from
Gulf during December, 2011, the 1st petitioner committed
cruelty demanding more dowry and thereby committed the
offences is the allegation. Annexure-I is the complaint.
According to the petitioners, even if the entire allegations are
accepted, no offence is made out.
3. Heard the learned counsel for the petitioners and the
learned counsel for the 2nd respondent.
4. The counsel for the petitioners submitted that even if
the entire allegations are accepted, the offences under Sections
3 and 4 of the Dowry Prohibition Act are not attracted. The
counsel for the petitioners also takes me through Annexure-I
complaint and submitted that as far as petitioners 2 and 3 are
concerned, there is absolutely no allegation against them,
except the vague statement. The counsel submitted that
petitioners 2 and 3 are aged 70 and 74 at the time of filing this
criminal miscellaneous case and now they are aged 76 and 80.
It is submitted that the continuation of prosecution against the
petitioners is an abuse of process of the Court.
5. The counsel for the 2nd respondent submitted that
2024:KER:82940
CRL.MC NO. 4509 OF 2018
there are specific averments against the petitioners especially
the 1st petitioner. The counsel submitted that the petitioners
mentally and physically harassed the 2nd respondent demanding
more dowry. Therefore it is submitted that this Court may not
interfere with the prosecution initiated against the petitioners.
The counsel also submitted that the petitioners can raise all
these contentions at the time of framing charge.
6. This Court considered the contentions of the
petitioners and the 2nd respondent. This Court perused
Annexure-I complaint also. After going through the complaint, I
am of the considered opinion that this Court need not interfere
with the prosecution initiated against the 1 st petitioner who is
the husband of the 2nd respondent. There are averments in the
complaint to the effect that there is demand for dowry and there
is physical cruelty also. Those are matters of evidence and the
1st petitioner has to establish before the trial court that the
averments in the complaint are not correct.
7. As far as petitioners 2 and 3 are concerned, it is true
that there is some allegation against them also. But the
allegations are omnibus and vague. The counsel for the 2 nd
2024:KER:82940
CRL.MC NO. 4509 OF 2018
respondent takes me through paragraph 6 of Annexure-I
complaint. Even if that is accepted, it will only show that
petitioners Nos.2 and 3 misappropriated the gold of the 2nd
respondent. There is no charge for the same. The Apex Court
in Mirza Iqbal v. State of Uttar Pradesh [2021 (6) KLT
OnLine 1032 (SC)] observed that if there is only vague and
omnibus allegation and if there is no specific allegation, the
accused cannot be prosecuted. It will be better to extract the
relevant portion of the above judgment:
"11. The appellants are brother-in-law and mother-in-
law respectively of the deceased. A perusal of the
complaint filed by the 2nd respondent, pursuant to
which a crime was registered, does not indicate any
specific allegations by disclosing the involvement of
the appellants. It is the specific case of the 1st
appellant that he was working as a cashier in ICICI
Bank at Khalilabad branch, which is at about 40 kms
from Gorakhpur. The alleged incident was on
24.07.2018 at about 8 p.m. When the investigation was
pending, the 1st appellant has filed affidavit before
Senior Superintendent of Police on 08.08.2018,
giving his employment details and stated that he was
falsely implicated. It was his specific case that during
the relevant time, he was working at ICICI Bank,
Khalilabad branch, Gorakhpur and his mother was also
2024:KER:82940
CRL.MC NO. 4509 OF 2018
staying with him. The Branch Manager has endorsed
his presence in the branch, showing in-time at 09:49
a.m. and out-time at 06:25 p.m. Even in the statement
of 2nd respondent recorded by the police and also in
the final report filed under Section 173(2) of Cr.P.C.,
except omnibus and vague allegations, there is no
specific allegation against the appellants to show their
involvement for the offences alleged. This Court, time
and again, has noticed making the family members of
husband as accused by making casual reference to
them in matrimonial disputes. Learned senior counsel
for the appellants, in support of her case, placed
reliance on the judgment of this Court in the case of
Geeta Mehrotra and Anr. v. State of Uttar Pradesh and
Anr.1. In the aforesaid case, this Court in identical
circumstances, has quashed the proceedings by
observing that family members of husband were shown
as accused by making casual (2012) 10 SCC 741
reference to them. In the very same judgment, it is
held that a large number of family members are shown
in the FIR by casually mentioning their names and the
contents do not disclose their active involvement, as
such, taking cognizance of the matter against them
was not justified. It is further held that taking
cognizance in such type of cases results in abuse of
judicial process. Paras 18 and 25 of the said judgment,
which are relevant for the purpose of this case, read as
under:
"18. Their Lordships of the Supreme Court in
2024:KER:82940
CRL.MC NO. 4509 OF 2018
Ramesh case [(2005)3 SCC 507 : 2005 SCC (Cri)
735] had been pleased to hold that the bald
allegations made against the sister-in-law by the
complainant appeared to suggest the anxiety of
the informant to rope in as many of the husband's
relatives as possible. It was held that neither the
FIR nor the charge- sheet furnished the legal
basis for the Magistrate to take cognizance of the
offences alleged against the appellants. The
learned Judges were pleased to hold that looking
to the allegations in the FIR and the contents of
the charge-sheet, none of the alleged offences
under Sections 498-A, 406 IPC and Section 4 of
the Dowry Prohibition Act were made against the
married sister of the complainant's husband who
was undisputedly not living with the family of the
complainant's husband. Their Lordships of the
Supreme Court were pleased to hold that the
High Court ought not to have relegated the sister-
in-law to the ordeal of trial. Accordingly, the
proceedings against the appellants were quashed
and the appeal was allowed.
25. However, we deem it appropriate to add by
way of caution that we may not be misunderstood
so as to infer that even if there are allegations of
overt act indicating the complicity of the
members of the family named in the FIR in a
given case, cognizance would be unjustified but
what we wish to emphasise by highlighting is
that, if the FIR as it stands does not disclose
specific allegation against the accused more so
against the co-accused specially in a matter
arising out of matrimonial bickering, it would be
clear abuse of the legal and judicial process to
mechanically send the named accused in the FIR
to undergo the trial unless of course the FIR
discloses specific allegations which would
persuade the court to take cognizance of the
offence alleged against the relatives of the main
accused who are prima facie not found to have
indulged in physical and mental torture of the
complainant wife. It is the well-settled principle
2024:KER:82940
CRL.MC NO. 4509 OF 2018
laid down in cases too numerous to mention, that
if the FIR did not disclose the commission of an
offence, the court would be justified in quashing
the proceedings preventing the abuse of process
of law.
Simultaneously, the courts are expected to adopt
a cautious approach in matters of quashing,
especially in cases of matrimonial disputes
whether the FIR in fact discloses commission of
an offence by the relatives of the principal
accused or the FIR prima facie discloses a case of
overimplication by involving the entire family of
the accused at the instance of the complainant,
who is out to settle her scores arising out of the
teething problem or skirmish of domestic
bickering while settling down in her new
matrimonial surrounding."
12. From a perusal of the complaint filed by the 2 nd
respondent and the final report filed by the police
under Section 173(2) of Cr.P.C., We are of the view that
the aforesaid judgment fully supports the case of the
appellants. Even in the counter affidavits filed on
behalf of respondent nos.1 and 2, it is not disputed that
the 1st appellant was working in ICICI Bank at
Khalilabad branch, but merely stated that there was a
possibility to reach Gorakhpur by 8 p.m. Though there
is an allegation of causing injuries, there are no other
external injuries noticed in the postmortem certificate,
except the single ante-mortem injury i.e. ligature mark
around the neck, and the cause of death is shown as
asphyxia. Having regard to the case of the appellants
and the material placed on record, we are of the
considered view that except vague and bald allegations
2024:KER:82940
CRL.MC NO. 4509 OF 2018
against the appellants, there are no specific allegations
disclosing the involvement of the appellants to
prosecute them for the offences alleged. In view of the
judgment of this Court in the case of Geeta Mehrotra
and Anr.1, which squarely applies to the case of the
appellants, we are of the view that it is a fit case to
quash the proceedings. "
8. In the light of the above principle, this Court again
considered Annexure-I complaint. I am of the considered
opinion that the continuation of prosecution against petitioners
2 and 3 can be quashed. But I make it clear that the
prosecution against the 1st petitioner can continue and the
jurisdictional court will consider the case against the 1 st
petitioner untrammeled by any observation in this order.
Therefore this criminal miscellaneous case is allowed in
part, with following directions:
1. The 1st petitioner has to face trial and all the
contentions raised by the 1st petitioner are left
open and he is free to raise the same before the
jurisdictional court at the appropriate stage.
2. The proceedings against petitioners 2 and 3 in
2024:KER:82940
CRL.MC NO. 4509 OF 2018
C.C.No.1264/2016 on the file of the Judicial First
Class Magistrate Court (Temporary), Paravur,
are quashed.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
2024:KER:82940
CRL.MC NO. 4509 OF 2018
PETITIONER ANNEXURES
ANNEXURE I CERTIFIED COPY OF THE COMPLAINT FILED BY
THE SECOND RESPONDENT
ANNEXURE II TRUE COPY OF THE DISCHARGE SUMMARY OF
THE FIRST PETITIONER
ANNEXURE III TRUE COPY OF THE TREATMENT RECORDS OF
THE SECOND PETITIONER,WHO IS BEDRIDDEN
DUE TO PARKINSON'S DISEASE
ANNEXURE IV TRUE COPY OF THE TREATMENT RECORDS OF
THE THIRD PETITIONER WHO IS AGED 74
YEARS.
