Quashed

Zayana Nazim v. State of Kerala

Kerala HC6 Jun 2019Crl.MC/1909/2019

Case brief

AI extract

What is this about?

The Kerala High Court quashed criminal proceedings against the petitioner (unmarried sister) under Sec.498A IPC, holding that vague allegations did not constitute cruelty and continued proceedings amounted to abuse of process under Sec.482 Cr.P.C.

What did the court decide?

The impugned Final Report/Charge Sheet against the petitioner in C.C.No.1008/2018 was quashed to the extent directed against the petitioner.

Zayana Nazim Vs State of Kerala — Domestic Violence | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941

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Crl.MC.No. 1909 of 2019

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AGAINST THE ORDER/JUDGMENT IN CC 1008/2018 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,THALASSERY

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CRIME NO. 306/2018 OF Edakkad Police Station , Kannur

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PETITIONER/S:

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ZAYANA NAZIM, AGED 21 YEARS D/O. NAZIMUDHEEN,RESIDING AT ZAYAN, NEAR RAJAS KALLAI SCHOOL, MADAPEEDIKA, THALASSERY, KANNUR (DIST)

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BY ADVS. SMT.K.DEEPA (PAYYANUR) SRI.V.R.NASAR

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RESPONDENT/S:

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1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN-682 031

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2 SABIMA SHERIN, AGED 30 YEARS D/O.USMAN, RESIDING AT SHABIMAS, NEAR KANHANGAD MASJID, THOTTADA, P.O.KIZHUNNA, KANNUR (DIST)

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BY ADV. SRI.M.V.AMARESAN

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OTHER PRESENT:

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SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, SRI.M.V.AMARESAN FOR R2

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1909 of 2019

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ALEXANDER THOMAS, J .

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Crl.M.C.No.1909 Of 2019

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Dated this the 6^th day of June, 2019.

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O R D E R

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The case projected in this petition filed under Sec.482 of the Cr.P.C is as follows:

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The petitioner herein is the 3^rd accused in C.C.No.1008/2018 on the file of the Additional Chief Judicial Magistrate Court, Thalassery in Crime No.306/2018 of Edakkad Police Station, registered for offence punishable under Sec.498A r/w Sec.34 of the I.P.C against the petitioner and others, viz., her husband , fatherin-law and unmarried sister-in-law respectively as accused Nos.1 to 3. The substance of the allegations against the petitioners is that the 1^st accused married the defacto complainant on 11.4.2013, that thereafter during the married life, the accused persons harassed the defacto complainant mentally as well as physically, demanding more dowry. Thus all the accused committed the abovesaid offences. The petitioner would allege that in fact, the above case has been filed with some ulterior motive of grabbing money from the petitioner. There is no ingredient to attract the abovesaid

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Crl.MC.No. 1909 of 2019

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offences as alleged by the prosecution against any of the accused, especially against the petitioner. Even if the prosecution case is assumed to be true, there is no specific allegation against the petitioner. According to the defacto complainant herself, after one month of the marriage itself, both the husband and wife went to Gulf. From Gulf, both husband and wife have lived together at the flat of the defacto complainant. The one and only allegation raised against the petitioner is that she had made attempt to separate 1^st accused- husband and the defacto complainant-wife by saying lies to the husband about the wife. Those types of vague allegations are not at all sufficient to attract the alleged offence of Sec.498A against her. The only intention of the defacto complainant is that to spoil the future and marriage prospects of the unmarried petitioner by implicating her in a false criminal case. There is no specific incident of cruelty alleged against the petitioner in Anx-I & II so as to attract the offence of Sec.498A r/w Sec.34 of the I.P.C. There is not even a remote probability of the case ending in conviction of the petitioner and the whole proceedings are vitiated by malafides and the case against the petitioner is a glaring instance of the abuse of the process of court. In very many case, the Apex Court held

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Crl.MC.No. 1909 of 2019

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that without specific material or evidence it will be hazardous to ask the accused to face trial. It is in the light of these averments, that the petitioner has filed the instant petition under Sec.482 of the Cr.P.C with the following prayers:

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“ (i) to quash Annexure-II final report and all the further proceeding pending against the petitioner in C.C.No.1008/2018 of the Addl. Chief Judicial Magistrate Court, Thalassery in Crime No.306/2018 of the Edakkad Police Station, Kannur, and

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(ii) to issue any other order or direction that Hon'ble Court may deem fit and proper from time to time for the petitioner to attain the ends of justice.”

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Heard Smt.K.Deepa (Payyannur), learned counsel for

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the petitioner, Sri.Amjad Ali, learned Prosecutor for the 1^st respondent and Sri.M.V.Amaresan, learned counsel for the 2^nd respondent-lady defacto complainant.

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From the factual materials it is seen that the impugned criminal proceedings as per Anx-II Final Report/charge sheet was filed in Crime No.306/2018 of Edakkad Police Station, which has now led to the institution of C.C.No.1008/2018 on the file of the Additional Chief Judicial Magistrate Court, Thalassery. That after the marriage of the 2^nd respondent with the brother of the petitioner-accused No.3, the 2^nd respondent-lady defacto complainant has been subjected to cruelty and harassment by her husband (accused No.1), husband's father (accused No.2),

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Crl.MC.No. 1909 of 2019

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husband's unmarried sister (accused No.3), etc. It is common ground that the petitioner (A-3) is the unmarried sister of A-1. The allegations raised against the petitioner (A-3) in Anx-I complaint which has led to the institution of the abovesaid criminal proceedings would show that it is rather vague and generalised as in para 5. In para 5 it is averred that the accused persons found faulted the complainant and accused Nos.1 to 3 have been demanding money from the complainant in the form of dowry and that the accused persons have been mentally torturing the complainant, etc. The specific allegations raised against A-3 in the complaint as can be seen from para 7 of Anx-A1 complaint is that A-3 had propagated unfounded allegations against the complainant and her mother which caused substantial mental agony and hardship to the complainant. The other allegations are generalised and vague and are directed as against the accused persons concerned implying as if those allegations are directed against the A-3 as well. It can be seen from page 3 of Anx-III memo of evidence attached along with Anx-II Final Report that even according to the 2^nd respondent it is stated that after her marriage she has gone to the Gulf countries where her husband is

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Crl.MC.No. 1909 of 2019

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employed and that families of both the couples were also in Gulf and that accused No.1 and the lady defacto complainant stayed together in the flat of 2^nd respondent's family in Dubai. It is further stated that after marriage, the husband, husband's father and husband's unmarried sister had demanded for money on many occasions and since the financial capacity of the 2^nd respondent's family was well off they had given such money to the husband's family. Further it is reiterated that the petitioner (A-3) had spread bad news about R-2 and her husband, etc. Sec.498A of the I.P.C, reads as follows:

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“ 498A. Husband or relative of husband of a woman subjecting her to cruelty .—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation.—For the purpose of this section, “cruelty” means—

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(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

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(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

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From an assessment of the totality of the facts and circumstances

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of this case, this Court is of the view that the said allegations disclosed as against A-3 will not amount to cruelty as understood in clause (a) of explanation appended to Sec.498A of the I.P.C.,

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Crl.MC.No. 1909 of 2019

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which envisages that cruelty means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. So also it appears that generalised and vague allegations are raised against the petitioner (A-3), who is the unmarried sister of the husband cannot be said to be harassment of such culpable degree as to coerce the victim or persons related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, etc., as envisaged in clause (b) of Sec.498A. It appears that the abovesaid allegations are made by R-2 mainly to add colour and to strengthen her allegations raised in the impugned crime.

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After hearing both sides and after taking into account the overall totality of the facts and circumstances of this case, this Court is of the view that the continuation of the criminal proceedings to the limited extent it is directed against the petitioner (A-3) is improper as it amounts to abuse of the process of the court. In the light of these aspects it it ordered that the impugned Anx-A Final Report/Charge Sheet filed in Crime

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Crl.MC.No. 1909 of 2019

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No.306/2018 of Edakkad Police Station, which is now pending as C.C.No.1008/2018 on the file of the Additional Chief Judicial Magistrate Court, Thalassery, to the limited extent it has directed as against the petitioner (A-3) will stand quashed.

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The petitioner will produce a certified copy of this order before the Investigating Officer concerned as well as the Additional Chief Judicial Magistrate Court concerned, which is dealing with C.C.No.1008/2018. The Office of the Advocate General will also forward certified copy of this order to the Investigating Officer for necessary information.

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With these observations and directions, the above Crl.M.C will stand finally disposed of.

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Sd/ALEXANDER THOMAS, Judge.

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bkn/-

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Crl.MC.No. 1909 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE-I	CERTIFIED COPY OF	THE	FIRST
	INFORMATION REPORT	OF	CRIME
	NO.306/2018 OF THE ED STATION, KANNUR	AKKAD	POLICE
ANNEXURE-II	CERTIFIED COPY OF THE FI CRIME NO.306/2018 OF POLICE STATION, KANNUR	NAL R THE	EPORT OF EDAKKAD
ANNEXURE-III	TRUE COPY OF THE MEMO OF SEC.161 CR.PC STATEMENTS	EVID OF W	ENCE AND ITNESSES
	OF CRIME NO.306/2018 OF POLICE STATION, KANNUR	THE	EDAKKAD

Zayana Nazim v. State of Kerala

Case brief

What is this about?

What did the court decide?

Zayana Nazim v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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