Kerala High Court
Arun G Nair vs State Of Kerala on 21 March, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.718/2023
& Crl.M.C.No.5423/2023
2025:KER:25113
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
CRL.REV.PET NO. 718 OF 2023
CRIME NO.240/2017 OF Ponkunnam Police Station, Kottayam
AGAINST THE ORDER DATED 8/6/2023 IN CMP 2494/2023 IN CC
NO.487 OF 2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS-
II,KANJIRAPPALLY
REVISION PETITIONER/ACCUSED:
ARUN G NAIR
AGED 31 YEARS
S/O. KESAVAN GOPINATHAN NAIR, UTHUMPARAYIL HOUSE,
MURIKKUMPUZHA, PALA P.O., KOTTAYAM DISTRICT, PIN -
686575
BY ADV K.RAJEEV
RESPONDENTS/DEFACTO COMPLAINANT:
1 STATE OF KERALA(CRIME NO.240/2027 OF PONKUNNAM POLICE
STATION) REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH
COURT OF KERALA, PIN - 682031
2 SUSEELA DEVI,W/O. LATE MOHANDAS, DAS MAHAL,
KOPRAKKALAM, ELAMGALAM, PONKUNNAM P.O.,
KOTTAYAM DISTRICT, PIN - 686506
BY ADVS.
PUBLIC PROSECUTOR SRI.M.P.PRASANTH
C.S.AJITH PRAKASH
T.K.DEVARAJAN(K/253/1993)
BABU M.(K/1324/2019)
ANCY THANKACHAN(K/1704/2019)
NIDHIN RAJ VETTIKKADAN(K/000060/2020)
GOURI KAILASH(K/002177/2022)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.03.2025, ALONG WITH Crl.MC.5423/2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P.No.718/2023
& Crl.M.C.No.5423/2023
2025:KER:25113
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
CRL.MC NO. 5423 OF 2023
CRIME NO.240/2017 OF Ponkunnam Police Station, Kottayam
CC NO.487 OF 2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II, KANJIRAPPALLY
PETITIONER/ACCUSED:
ARUN G NAIR, AGED 31 YEARS
S/O. KESAVAN GOPINATHAN NAIR, UTHUMPARAYIL HOUSE,
MURIKKUMPUZHA, PALA P.O., KOTTAYAM DISTRICT, PIN -
686575
BY ADV K.RAJEEV
RESPONDENTS/DEFACTO COMPLAINANT:
1 STATE OF KERALA (CRIME NO.240/2017 OF PONKUNNAM
POLICE STATION) REPRESENTED BY THE PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
2 SUSEELA DEVI
W/O. LATE MOHANDAS, DAS MAHAL, KOPRAKKALAM,
ELAMGALAM, PONKUNNAM P.O.,
KOTTAYAM DISTRICT, PIN - 686506
BY ADVS.
PUBLIC PROSECUTOR SMT C.SEENA
C.S.AJITH PRAKASH
T.K.DEVARAJAN(K/253/1993)
BABU M.(K/1324/2019)
ANCY THANKACHAN(K/1704/2019)
NIDHIN RAJ VETTIKKADAN(K/000060/2020)
GOURI KAILASH(K/002177/2022)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.03.2025, ALONG WITH Crl.Rev.Pet.718/2023, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
Crl.R.P.No.718/2023
& Crl.M.C.No.5423/2023
2025:KER:25113
3
ORDER
The above criminal miscellaneous case and criminal revision petition are connected. The parties are one and the same. The Annexures are shown as referred to in Crl. M.C.No.5423/2023.
2. The petitioner married the daughter of the 2 nd respondent, viz., Monisha, on 1/9/2014. At the time of the marriage, the petitioner was working as a male nurse in Australia and his wife was working as a Software Engineer at Ernakulam. After the marriage, they left to Australia on 7/9/2015. The wife of the petitioner committed suicide in Australia by hanging at their residence on 7/2/2017. On 17/2/2017, the 2nd respondent submitted Annexure II complaint to the Superintendent of Police, Kottayam seeking investigation into the untimely death of her daughter. It was alleged that the deceased was subjected to physical and mental cruelty by the petitioner which forced her to commit suicide. On 19/2/2017, the 2 nd respondent submitted another complaint (Annexure III) in continuation to her earlier complaint to the Superintendent of Police, Kottayam seeking to register a crime under Section 498A of IPC and to investigate the same. Annexure III complaint was forwarded to the Ponkunnam Police who registered Annexure IV crime against the petitioner alleging offences punishable under Sections 406, 420 and 498A of IPC. During the course of investigation, the mother and sister of the petitioner Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 4 were also arrayed as accused in the crime. After investigation, the final report was submitted before the Judicial First Class Magistrate Court - II, Kanjirappilly (for short, 'the Magistrate Court') on 14/6/2017 against the petitioner, his sister and his mother for the offences punishable under Sections 294(b), 323, 406, 420, 498A r/w 34 of IPC. The learned Magistrate took cognizance of the offences and numbered the case as CC No.487/2017.
3. The petitioner, along with his mother and sister, filed Crl. M.C.No.6565/2017 before this court to quash the final report and all further proceedings in CC No. 487/2017. This court, as per Annexure VI order dated 22/10/2019, quashed the entire proceedings against the mother and sister of the petitioner. In respect of the petitioner, offences under Sections 406 and 420 of the IPC were quashed, and offences under Sections 294(b), 323 and 498A of the IPC were maintained and allowed to proceed. Though the petitioner challenged Annexure VI order before the Supreme Court, he did not succeed.
4. The 2nd respondent then filed Annexure VIII application before the Magistrate Court seeking further investigation into the matter. The Magistrate Court allowed Annexure VIII application and directed further investigation. After further investigation, CW25, the investigating officer filed Annexure X final report dated 2/4/2022. However, the Magistrate Court directed the police to conduct further Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 5 investigation into the matter as per the order dated 10/10/2022. In pursuance of the order passed by the Magistrate Court, the Dy. S.P Crime Branch (CW26) took over further investigation. On 17/2/2023, CW26 submitted a final report stating that the petitioner has committed the offences punishable under Sections 294(b), 323 and 498A of IPC. The 2nd respondent thereafter filed Annexure XIV application before the Magistrate Court stating that the offence punishable under Section 304B of IPC was made out in the final report and, therefore, prayed for an order to add Section 304B of IPC. The petitioner filed Annexure XV objection to Annexure XIV inter alia contending that there are no materials against him to add Section 304 B of IPC as alleged. The Magistrate Court, as per Annexure XVI order dated 8/6/2023, allowed Annexure XIV application, holding that a prima facie case is made out against the petitioner under Section 304B of IPC. Crl.R.P.No. 718/2023 has been filed challenging Annexure XVI order. Crl. M.C.No.5423/2023 has been filed to quash all further proceedings pursuant to Annexures X and XIII final reports.
5. I have heard Sri. K. Rajeev, the learned counsel for the petitioner, Sri. C. S. Ajith Prakash, the learned counsel for the 2 nd respondent, and Sri. M. P. Prasanth and Smt. C. Seena, the learned Public Prosecutors.
6. The learned counsel for the petitioner submitted that in Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 6 any of the final reports, none of the ingredients of the offence under Section 304B of IPC is present except the fact that the death had occurred within seven years of marriage and hence, the Magistrate Court committed gross illegality in passing Annexure XVI order adding Section 304B of IPC. The learned counsel further submitted that the impugned order does not give any reasons to add Section 304B of IPC and hence, is liable to be set aside. On the other hand, the learned counsel for the 2nd respondent submitted that in Annexure XIII final report, there are sufficient materials to show that soon before the death, the deceased was subjected to cruelty by the petitioner in connection with the demand for dowry and hence the Magistrate Court was absolutely justified in passing the impugned order.
7. The only challenge is against the incorporation of the offence under Section 304B of IPC. According to the petitioner, there is absolutely no material against him to add Section 304B of IPC. In order to attract an offence under Section 304B of IPC, the death of the woman has to occur otherwise under normal circumstances within seven years of marriage and it must be shown that she was subjected to cruelty by her husband or relatives for, or in connection with, the demand for dowry. Thus, cruelty or harassment must be shown to have been meted out to the woman soon before her death. Admittedly, the death of the wife of the petitioner occurred within seven years of marriage. The crucial question is whether there is Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 7 sufficient material to show that soon before death, the deceased was subjected to cruelty or harassment by the petitioner in connection with the demand for dowry. In Annexure III complaint preferred by the 2nd respondent before the Superintendent of Police, Kottayam, the prayer was to register a case under Section 498A of IPC and to investigate the matter. In all three final reports, the investigation agency did not choose to incorporate the offence under Section 304B of IPC against the petitioner. In Annexure VIII application, the specific case of the 2nd respondent was that the offence under Section 304B was also involved, and the investigation has to be conducted by adding the said Section. In Annexure IX objection to the said application, the petitioner took a specific contention that there was no need for further investigation as there was absolutely no material to make out an offence punishable under Section 304B of IPC. The Magistrate Court allowed Annexure VIII application and directed further investigation. In the further investigation pursuant to the said order, the investigation agency found that the offence under Section 304B was not attracted and filed Annexure X final report stating that the petitioner committed offences punishable under Sections 294(b), 323, r/w 498A of IPC. Still, the Magistrate ordered further investigation. Again, the investigating agency found that the offence under Section 304B was not involved and filed the final report stating that the petitioner had committed offences punishable under Sections Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 8 294(b), 323 and 498A of IPC. It was thereafter the Magistrate Court passed the impugned order adding Section 304B of IPC after arriving at a finding that a prima facie case was made out against the petitioner under Section 304B of IPC.
8. The Magistrate has the following options on receipt of the final report from the investigating officer.
(i) He may accept the final report and drop the proceedings.
(ii) He may disagree with the final report taking the view that there is sufficient material to take cognizance of the offences and issue process to the accused.
(iii) He may direct further investigation to be made by the police.
9. It is true, normally the Magistrate while accepting the final report, taking cognizance and issuing process to the accused need not pass a detailed order. But this is a case where three reports were filed by the investigating agency without incorporating the offence under Section 304B of IPC, despite the specific allegation of the defacto complainant that the said offence was involved. Hence, the Magistrate Court, while adding Section 304B of IPC, was supposed to pass a Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 9 speaking order with reasons. Of course, the Magistrate has every right to peruse the final report in detail and add Section 304B of IPC as well. But, the order should reflect that the Magistrate has scrutinized the entire records and applied his mind before taking a decision to add Section 304B of IPC. The impugned order is bereft of any reasons. It only says that the perusal of prosecution records shows that there is prima facie case against the petitioner under Section 304B of IPC also. The said finding is unsupported by any reason. A report filed under Section 173(8) of Cr.P.C has no separate entity apart from the final report submitted under Section 173(2) of Cr.P.C. Both these reports have to be read conjointly so as to ascertain the existence of grounds to presume that the accused has committed the offence. It cannot be read or appreciated independently, but its cumulative effect should be considered so as to determine whether there exist grounds to presume that the accused has committed the offence {See. Vinay Tyagi v. Irshad Ali @ Deepak and Others, (2013) 5 SCC 762]}. There is nothing on record to show that the Magistrate has appreciated all three final reports before passing the impugned order adding Section 304B of IPC. Since the impugned order is not a speaking one and unsupported by reasons, I am of the view that it cannot be sustained. Accordingly, it is set aside.
The Magistrate Court is directed to reconsider Annexure XIV application in the light of the observations made in this order and Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 10 dispose of the same in accordance with the law after hearing both sides by passing a reasoned order within two months from the date of receipt of a copy of this order. Crl. M.C and Crl. R.P. are disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE Rp Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 11 APPENDIX OF CRL.REV.PET 718/2023 RESPONDENT ANNEXURES Annexure R2(a) A TRUE COPY OF THE CMP NO.1289/2020 DATED 18-02-2020 FILED BY THE RESPONDENT BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE II KANJIRAPPILLY, Annexure R2(b) A TRUE COPY OF THE ORDER DATED 28-10-2020 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE II, KANJIRAPPALLY, IN CMP NO.1289/2020 IN CC.487/2017 Annexure R2(c) A TRUE COPY OF THE ORDER DATED 10-10-2022 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT II, KANJIRAPPALLY IN CC NO.487/2017 Annexure R2(d) A TRUE COPY OF THE PETITION FILED BY THE DEFACTO COMPLAINANT DATED 15-05-2023 NUMBERED AS CMP NO. 2494/2023 IN CC.487/2017 Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 12 APPENDIX OF CRL.MC 5423/2023 PETITIONER ANNEXURES Annexure I TRUE COPY OF THE STATEMENT FILED BY THE INVESTIGATOR MATT ANDERSON DATED 20.06.2017 Annexure A II TRUE COPY OF THE COMPLAINT DATED 17.2.2017 Annexure III TRUE COPY OF THE COMPLAINT DATED 19.2.2017 Annexure AIV TRUE COPY OF THE FIR NO. 240 OF 2017 DATED 21.2.2017 Annexure A V TRUE COPY OF THE CRL.M.C NO. 6565 OF 2017 DATED 25.09.2017 Annexure AVI TRUE COPY OF THE ORDER DATED 22.10.2019 PASSED BY THIS HON'BLE COURT IN CRL.M.C NO. 6565 OF 2017 Annexure AVII TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN SLP(CRL) DIARY NO. 6745 OF 2020 DATED 14.12.2020 Annexure AVIII TRUE COPY OF THE APPLICATION IN CMP 1289 OF 2020 DATED NIL Annexure AIX TRUE COPY OF THE OBJECTION DATED 24.9.2020 Annexure AX CERTIFIED COPY OF THE FINAL REPORT DATED 2.4.2022 IN CC NO.487/2017 IN CRIME NO.240/2017 OF PONKUNNAM POLICE STATION IN JUDICIAL FIRST CLASS MAGISTRATE II, KANJIRAPALLY Annexure AXI TRUE COPY OF THE APPLICATION DATED 29.1.2021 Annexure AXII TRUE COPY OF THE ORDER DATED 11.5.2021 PASSED BY THE HON'BLE CORONERS COURT Annexure AXIII CERTIFIED COPY OF THE FINAL REPORT DATED 17.2.2023 IN CC NO.487/2017 IN CRIME NO.240/2017 OF PONKUNNAM POLICE STATION IN JUDICIAL FIRST CLASS MAGISTRATE II, KANJIRAPALLY Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023 2025:KER:25113 13 Annexure AXIV TRUE COPY OF THE APPLICATION CMP 2494 OF 2023 IN CC 487/2017 DATED 15.5.2023 Annexure AXV TRUE COPY OF THE OBJECTION DATED 22.5.2023 IN CMP 2494 OF 2023 IN CC 487/2017 Annexure AXVI TRUE COPY OF THE ORDER PASSED BY THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, KANJIRAPPALLY IN CMP 2494 OF 2023 IN CC 487/2017 DATED 8.6.2023 RESPONDENT EXHIBITS Annexure R2(a) A TRUE COPY OF THE RELEVANT PAGES OF CORONIAL BRIEF LEADING INTO THE CIRCUMSTANCES OF DEATH OF MONISHA MOHANDAS (COR 2017 0000638 FILED BEFORE THE CORONERS COURT OF VICTORIA MELBOURNE Annexure R2(b) A TRUE COPY OF THE ORDER DATED 28.10.2020 IN CMP 1289/2020 IN CC 487/2017 OF THE JFCM II KANJIRAPPALLY Annexure R2(c) A TRUE COPY OF THE ORDER IN CC 487/2017 DATED 10.10.2022 OF THE FIRST CLASS MAGISTRATE II, KANJIRAPPALLY Annexure R2(d) A TRUE COPY OF THE APPLICATION DATED 29-01- 2021 SUBMITTED BY THE 2ND RESPONDENT TO SET ASIDE THE FINDING BEFORE THE CORONERS COURT OF VICTORIA ALONG WITH ITS ATTACHMENT Annexure R2(e) A TRUE COPY OF THE JUDGMENT IN OP NO 290/2018 DATED 20.11.2023 OF THE HON'BLE FAMILY COURT PALA PETITIONER ANNEXURES Annexure XVII TRUE COPY OF S.161 STATEMENTS MADE BY THE 2ND RESPONDENT, SUSEELA DEVI.
Annexure XVIII TRUE COPY OF S.161 STATEMENT BY MANJUSHA MOHANDAS, DAUGHTER OF 2ND RESPONDENT.
Annexure XIX TRUE COPY OF S.161 STATEMENT BY GOPALAKRISHNAN, BROTHER OF RESPONDENT NO.2. Crl.R.P.No.718/2023 & Crl.M.C.No.5423/2023
2025:KER:25113 14 Annexure XX TRUE COPY OF S.161 STATEMENT BY AMRITHA, FRIEND OF THE DECEASED.
Annexure XXI TRUE COPY OF S.161 STATEMENT BY ADITHA, FRIEND OF THE DECEASED.
Annexure XXII TRUE COPY OF S.161 STATEMENT BY SUNNY JOSEPH, NEIGHBOR OF 2ND RESPONDENT.
Annexure XXIII TRUE COPY OF S.161 STATEMENT BY SOMASEKHARAN, SECRETARY OF NSS KARAYOGAM.
Annexure XXIV TRUE COPY OF S.161 STATEMENT BY HARIKRISHNAN, COUSIN OF THE DECEASED PERSON. Annexure XXV TRUE COPY OF S.161 STATEMENT BY HARIKUMAR, UNCLE OF THE DECEASED. Annexure XXVI TRUE COPY OF S.161 STATEMENT BY JISMON GEORGE, NEIGHBOR OF 2ND RESPONDENT. Annexure XXVII TRUE COPY OF S.161 STATEMENT MADE BY CYRIAC JOSE K., JUNIOR SUPERINTENDENT IN SUB REGISTRAR OFFICE. Annexure XXVIII TRUE COPY OF S.161 STATEMENT BY S. ANULEKHA, MANAGER OF BANK. Annexure XXIX TRUE COPY OF S.161 STATEMENT MADE BY
LAKSHMI VERMA, WIFE OF HARIKRISHNAN, WHO IS DECEASED PERSON'S COUSIN.
Annexure XXX TRUE COPY OF S.161 STATEMENT MADE BY SUDHA KUMARI K, JUNIOR SUPERINTENDANT, POLICE, KOTTAYAM.
Annexure XXXI TRUE COPY OF S.161 STATEMENT BY ASHITHA JOSE, BRANCH MANAGER OF SOUTH INDIAN BANK.