Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 2ND DAYOF JULY 2013 11TH ASHADHA, 1935 Crl.MC.No. 2155 of 2013 () --------------------------- CMP. NO.344/2013 IN CC. NO.8/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT , KUNNAMANGALAM. ........... PETITIONER/DEFACTO COMPLAINANT: --------------------------------------------------------- JAYASREE, W/O.RENJITH, AGED 3 YEARS, KSR NIVAS, THIYYAKANDY,MADAVOOR P.O., PANCHAVADYAPALAM, NOW RESIDING AT MEDATHIL HOUSE, P.O.KAKKOOR, PERUMBOYIL, KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN. RESPONDENTS/RESPONDENTS/ACCUSED AND STATE: --------------------------------------------------------------------------------- 1. RANJITH, S/O.SEKHARAN NAIR, KSR NIVAS (THIYYAKKANDY PARAMBA), PANCHAVADIPPALAM P.O., MADAVOOR, MADAVOOR AMSOM, KOZHIKODE”
517.
2. SUB INSPECTOR OF POLICE, KUNNAMANGALAM POLICE STATION, KOZHIKODE -673 516.
3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI”
031. R1 BY ADV. SMT.T.RESMI DAMODARAN. R2 & R3 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.MC.No. 2155 of 2013 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A A COPY OF THE FINAL CHARGE SUBMITTED BY THE 2ND RESPONDENT IN FIR NO. 172/07 DATED 27 11-2007 KUNNAMANGALAM POLICE STATION. ANNEXURE B A COPY OF THE PETITION UNDER SECTION 173 8) CR.PC DATED 16 01-2013 SUBMITTED BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS KUNNAMANGALAM. ANNEXURE C COPY OF ORDER DATED 14 05-2013 IN CMP. 344/13 IN CC.8/2008 ON THE FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE. rs. V.K.MOHANAN, J.
------------------------------------------ Crl.M.C.No.2155 of 2013 ------------------------------------------- Dated this the 02nd day of July, 2013 ORDER The petitioner, who is the de facto complainant in C.C.No.8 of 2008 on the file of the Judicial First Class Magistrate Court, Kunnamangalam preferred the above Crl.M.C. under Section 482 of Cr.P.C. with a prayer to quash Annexure-C order and to order further investigation in Crime No.172 of 2007 of Kunnamangalam Police Station.
2. The case of the petitioner is that, though the petitioner being the de facto complainant informed the Police about the treatment undertaken by her after consulting Doctor Jacob Cherian mentioned in F.I. Statement, the Police has not conducted any proper investigation and the said Doctor was not examined and no material is produced which adversely affected the prosecution. It is also the case of the petitioner that, though there was specific allegation against the respondents against the mother-in-law and sister-in-law of the petitioner they are not arrayed as accused. Therefore, she Crl.M.C.No.2155 of 2013 :-2-: preferred Annexure-B petition before the court below for further investigation in the above crime. But the learned Magistrate as per Annexure-C order declined the above request. Thus, aggrieved by Annexure-C order the de facto complainant, who is the petitioner in C.M.P.No.344 of 2013 of the court of the Judicial First Class Magistrate, Kunnamangalam preferred the above Crl.M.C.
3. I have heard Sri.P.V.Kunhikrishnan, the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent as well as the learned Public Prosecutor.
4. The Crime No.172 of 2007 was registered in the above Police Station for the offences punishable under Sections 406 and 498-A of IPC on the basis of the statement furnished by the petitioner, who is the de facto complainant against altogether four accused. According to the de facto complainant, the accused in the F.I.R. physically and mentally harassed the petitioner demanding more money and gold. It is Crl.M.C.No.2155 of 2013 :-3-: also the case of the petitioner that, the gold and money already entrusted with the accused were misappropriated and again the de facto complainant on various occasions subjected to harassment with common intention to secure more money and gold from her. On the basis of the F.I. Statement given on 01/07/2007, the F.I.R. was registered against the four persons including the mother-in-law and sister-in-law of the de facto complainant. When the police filed Annexure-A report only the husband of the de facto complainant is figured as the accused. According to the petitioner, all those facts came to know only when she was summoned to the court to give evidence as PW.1. It is also the case of the petitioner that, she came to know about deliberate attempt on the part of the police in not questioning the Doctor, who examined her and treated her as stated in Annexure-A F.I. Statement. Thus, according to the petitioner, it was in the above circumstances, she prepared C.M.P.No.342 of 2013 on 16/01/2013 in C.C.No.8 of 2008 under Section 173 (8) of Cr.P.C. But, according to the Crl.M.C.No.2155 of 2013 :-4-: petitioner, without considering the merit of the request made by the petitioner the learned Magistrate dismissed her application.
5. The learned counsel for the petitioner vehemently submitted that, the sole reason stated by the learned Magistrate to decline the request of the petitioner is the delay and according to the learned counsel the said reason is not sustainable. It is pointed out by the learned counsel that the petitioner in fact lodged the F.I. Statement on 01/07/2007 and thereafter the petitioner was not aware of the steps taken by the police towards the investigation and she was ignored of the fact about the default on the part of the police in not questioning the Doctor who treated her. After taking me through Annexure-B petition the learned counsel submitted that there is a specific allegation with respect to the overt act of the mother-in-law and sister-in-law of the petitioner. But those aspects were not considered by the learned Magistrate. On the other hand, the learned counsel appearing for the first Crl.M.C.No.2155 of 2013 :-5-: respondent submitted that, the present petition was filed at the fag end of the trial and though she was re-called and re- examined, she never made any allegation with respect to the ill-treatment meted out her by any other person. Therefore, the learned Magistrate, according to the learned counsel for the first respondent, is fully justified in dismissing the petition.
6. I have carefully considered the submissions made by the learned counsel for the petitioner and the first respondent and I have also considered the submissions made by the learned Public Prosecutor.
7. It appears that Crime in F.I.R.No.172 of 2007 was registered in the Kunnamangalam Police Station on 01/07/2007 on the basis of the F.I. Statement given by the de facto complainant and on completing the investigation the police preferred a report under Section 173(2) of Cr.P.C. on 27/11/2007. In the said Annexure-A report, on completing the investigation, the police formed an opinion to the effect that the offence alleged under Sections 498-A and 406 of IPC are Crl.M.C.No.2155 of 2013 :-6-: revealed only against the husband of the de facto complainant and therefore remaining other accused from the party array as shown in F.I.R., were removed and final report filed against the husband of the de facto complainant alone. When the case was ripe for trial, summons was issued to the de facto complainant and consequently, she was examined on 10/05/2010 as PW.1. After closing the prosecution evidence and after recording the 313 statement of the accused, the petitioner herein preferred C.M.P.No.342 of 2013 on 16/01/2013 for re-opening the evidence and that petition was allowed and the petitioner was further examined on 18/01/2013 and marked Ext.P9 judgment of the Family Court, Kozhikode. It is thereafter the present petition that is C.M.P.No.344 of 2013 was filed under Section 173(8) of Cr.P.C. with a prayer for further investigation. In the impugned order the learned Magistrate has found that the main allegation of the petitioner is that some of the accused are involved in the array of the accused. The Crl.M.C.No.2155 of 2013 :-7-: learned counsel for the petitioner submitted that besides the above in Annexure-B petition it is clearly mentioned and pointed out the default on the part of the police not questioning the Doctor who examined the de facto complainant and also on the failure on the part of the police in not producing any materials in this regard. On going through Annexure-B petition, it appears to me that, though the de facto complainant has got a case that she was subjected to harassment both mentally and physically she had not gone to any Government Hospital and no information was furnished to the police from the hospital, if any, she got treated or admitted. In Annexure-B petition it is stated that, in pursuance to the so-called harassment, she met the Doctor Jacob Cheriyan in YMCA. However, the learned counsel for the petitioner pointed out that PW.1 as stated in F.I. Statement as well as in the chief-examination, she had consulted a private Doctor. If that be so, it is for the learned Magistrate to consider the evidentiary value of that statement of the de facto Crl.M.C.No.2155 of 2013 :-8-: complainant in the given facts and circumstances of the case. Further it is relevant to note that as pointed out by the learned counsel for the first respondent even though the petitioner was re-examined on 18/01/2010 after re-calling her, during such occasion also the petitioner did not submit any allegation of ill- treatment by any person other than the sole accused in the above case. Thus, it can be seen that the present petition is filed at the fag end of the trial of the case in C.C.No.8 of 2008 which was instituted during the year 2008 based upon the F.I. Statement given by the petitioner on 01/07/2007. Thus, I find no merit in the petition especially when the order of the learned Magistrate and the reason stated therein are perfectly legal and valid. Accordingly the above Crl.M.C. is dismissed. V.K.MOHANAN, JUDGE skj