Kerala High Court
Jismy Jose vs State Of Kerala on 13 December, 2024
2024:KER:94538
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 13TH DAY OF DECEMBER 2024 / 22ND AGRAHAYANA, 1946
CRL.MC NO. 7300 OF 2023
CRIME NO.451/2022 OF TOWN WEST POLICE STATION, THRISSUR
IN CC NO.134 OF 2022 OF CHIEF JUDICIAL MAGISTRATE, THRISSUR
PETITIONER/3RD ACCUSED:
JISMY JOSE
AGED 30 YEARS
D/O JOSE VELLANI HOUSE, KAKKULISSERY DESOM, ERAVATHOOR
P.O, THRISSUR DISTRICT, PIN - 680734
BY ADVS.
NIJI K.SHAHUL
P.A.AYUB KHAN
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 SUB INSPECTOR OF POLICE
THRISSUR TOWN WEST POLICE STATION, KALYAN NAGAR,
AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003
3 ALSEENA PAUL
AGED 29 YEARS
D/O PAUL, NEELAMKAVIL HOUSE OLARIKKARA DESOM, PULLAZHI
VILLAGE THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680012
CRL.MC NO. 7300 OF 2023 2
2024:KER:94538
SRI. E.C BINEESH (PP)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.12.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 7300 OF 2023 3
2024:KER:94538
ORDER
Dated this the 13th December, 2024 Petitioner is the 3rd accused in Crime No.451/2022 of Thrissur West Police Station, Thrissur City, which is now pending consideration before the Chief Judicial Magistrate Court, Thrissur as C.C. No.134/2022. Petitioner seeks quashment of the entire proceedings in the calender case afore referred.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.
3. Learned counsel would submit that the petitioner's brother is the husband of the 3rd respondent/de facto complainant, in which wedlock, they have a 4 year old boy child. Their marital relationship has been strained. R3/defacto complainant filed a complaint before Thrissur West Police Station, but no crime was registered, for reasons of absence of sufficient material to proceed with. However, pursuant to the complaint filed before the CRL.MC NO. 7300 OF 2023 4 2024:KER:94538 Chief Minister of Kerala, Annexure A1 F.I.R was lodged alleging offence under section 498A of the Penal Code. Annexure A2 is the Final Report filed before the Chief Judicial Magistrate Court, Thrissur, as per which the petitioner is the 3rd accused. Learned counsel would submit that the petitioner is working as a nurse in Malta, since 2020. Now, the petitioner has got a job offer from Germany, but she is unable to get police clearance certificate, due to the pendancy of the above crime.
4. Learned counsel would then invite the attention of this Court to Annexure A-2 Final report, where no prima facie material or proof is submitted against the petitioner. There is no specific allegation constituting the offence alleged. Nor is the role of each accused enumerated in the final report. Learned counsel would also submit that there is no element of common intention and alleged overt acts against the petitioner. Learned counsel would point out that there is no mention of any CRL.MC NO. 7300 OF 2023 5 2024:KER:94538 specific incident leading to mental or physical harassment to the dafcato complainant. Learned counsel would finally submit that all proceedings culminating in the calender case afore referred are liable to be quashed.
5. Per contra, this application was seriously opposed by the learned Public Prosecutor.
6. Having heard the learned counsel appearing for the respective parties, this Court finds that Annexure A-2 final report falls short of the requirements in terms of law.
7. It is essential to note that an accused person in a crime has to answer the specific allegations in the charge. The requirement of law is that allegations should be specific, so as to enable the accused to answer the same. This is so fundamental for the accused to exercise his right of effective defence, a right which flows from Article 21 of the Constitution of India. In the instant CRL.MC NO. 7300 OF 2023 6 2024:KER:94538 case, as rightly pointed out by the learned counsel for the petitioner, apart from a bald, vague, general allegation that accused Nos.1 to 4 - without specifying the role of each - have harassed the defacto complainant physically and mentally demanding more gold and money. Such allegation in the final report will not enable the petitioner/A3 to answer the charges, in exercise of their right to defence. The legal position in this regard is not res integra. In Kahkashan Kausar alias Sonam and others V. State of Bihar and others [(2022) 6 SCC 599], even the quashment of an F.I.R was confirmed by the Supreme Court, on the premise that the allegations are general and omnibus without specifying the role of each accused in the offence. For the same reason that the allegations are vague and general, the Supreme Court chose to quash the final report in Mahalakshmi & Ors. V. The State of Karnataka & Anr [judgment in Criminal Appeal No. 494/2023 dated 30.11.2023], wherein the absence of material evidence was also taken stock of. Both the afore referred decisions were rendered in the context of the CRL.MC NO. 7300 OF 2023 7 2024:KER:94538 offence of Section 498A of the Penal Code. This Court, therefore, finds that Annexure A-2 Final report cannot be sustained in law and the same is therefore hereby quashed, as against all accused, since the legal infirmity found in common to all accused persons.
8. However, as regards the contention that Annexure A-1 F.I.R and all proceedings pursuant thereto are liable to be quashed, this Court cannot endorse the submissions made by the learned counsel for the petitioner. It cannot be said that, going by Annexure A-3 statement that the ingredients of the offence under Section 498A IPC are not made out prima facie, leave alone the correctness, veracity and genuineness of such allegations. In the circumstances, the prayer to quash Annexure A-1 F.I.R and all proceedings pursuant thereto is declined.
9. The upshot of the above discussion is that this Crl.MC is allowed in part by quashing Annexure-A2 final report and all further proceedings in C.C No. 134/2022 pending CRL.MC NO. 7300 OF 2023 8 2024:KER:94538 before the Chief Judicial Magistrate Court, Thrissur. In case, the investigating officer is convinced that the facts constitute the offence alleged, it will be open for him to file a fresh final report, in accordance with law, specifically enumerating the role of each accused as against the instances found, if any, found against them in the investigation.
10. It is clarified that, the police clearance certificate, if any required by the petitioner will be issued in terms of Section 59 of Kerala Police Act, as interpreted by this Court in Abhirami Girish V. State of Kerala [2024 (6) KHC 629] and Sasikumar V. State of Kerala [2023 KHC 254].
This Crl.MC is allowed in part, as above.
SD/-
C. JAYACHANDRAN JUDGE JJ CRL.MC NO. 7300 OF 2023 9 2024:KER:94538 APPENDIX OF CRL.MC 7300/2023 PETITIONER ANNEXURES Annexure A1 A CERTIFIED COPY OF FIR IN CRIME NO. 451/2022 OF THRISSUR WEST POLICE STATION IN THRISSUR DISTRICT Annexure A2 A CERTIFIED COPY OF FINAL REPORT IN CRIME NO.
451/2022 OF THRISSUR WEST POLICE STATION IN THRISSUR DISTRICT SUBMITTED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT IN CC NO 134/2022 Annexure A3 A CERTIFIED COPY OF FIS IN CC NO. 134/2022 OF THRISSUR WEST POLICE STATION IN THRISSUR DISTRICT Annexure A4 A CERTIFIED COPY OF THE SEIZURE MAHASAR IN CC.NO.134/2021 OF THRISSUR WEST POLICE STATION IN THRISSUR DISTRICT