Allowed

Shabimol v. State of Kerala

Kerala HC14 Dec 2022Crl.MC/4734/2018

Case brief

AI extract

What is this about?

In a criminal miscellaneous case regarding Sections 498A IPC, the High Court allowed a petition challenging the closure of evidence. The court quashed the lower court order dismissing a request to recall medical witnesses, directing the Magistrate to re-open evidence and ensure their presence for examination.

What did the court decide?

The order dismissing the application to recall PWs 5 to 7 is set aside; evidence re-opened; witnesses recalled and process issued for their appearance.

Shabimol Vs State of Kerala — Succession and Inheritance | Kerala HC (2022)

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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 ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 14TH DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944

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CRL.MC NO. 4734 OF 2018

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[ORDER DATED 02.06.2018 IN CMP NO.2337/2018 IN C.C.NO.61/2008

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PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,

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THIRUVANANTHAPURAM]

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PETITIONER/COMPLAINANT:

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SHABIMOL,D/O. SHAKUNTHALA, REVATHY, KANNAMKODE, KARUMAM
P.O., THIRUVANANTHAPURAM.

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BY ADVS.
SRI.S.RAJEEV
SRI.K.ANAND A-1921
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY

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RESPONDENTS/STATE AND ACCUSED NOS.1 TO 3:

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1STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM - 682031.

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2 AJITH BOSE,SGLAR-10, AJITH BHAVAN, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695002.

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3VASANTHA PANKAJAKSHI
W/O. CHANDRA BOSE, SGLAR-10, AJITH BHAVAN, KUMARAPURAM,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695002.
4CHANDRA BOSE
SGLAR-10, AJITH BHAVAN, KUMARAPURAM, MEDICAL COLLEGE
P.O., THIRUVANANTHAPURAM - 695002.
BY ADVS.
R1 BY SRI.SUDHEER GOPALAKRISHNAN, PP
R2 BY RAMAKUMAR (SR.) K.
RAMPRASAD UNNI T.
PRASANTH S.M.
RENJITH G.
ASWINI SANKAR R.S.
ARAVIND T.H.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.12.2022, THE COURT ON 14.12.2022 PASSED THE FOLLOWING:

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CRL.MC No.4734 of 2018 2

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O R D E R

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The petitioner is the complainant in
C.C.No.61/2008 onthefileofthe

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Additional Chief Judicial Magistrate Court,
Thiruvananthapuram. Respondents 2,3 and 4 are
the accused persons therein and the offences
alleged are under Sections 498A r/w. Section 34

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of the Indian Penal Code (IPC).

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2.The facts which led to the filing of
this Crl.M.C. are as follows:

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The 2nd respondent/1st accused had married the

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petitioner as per the customary rites on
7.02.2006. Respondents 3 and 4 are the parents
of the 2nd respondent and are accused Nos.2 and 3
respectively. The allegation is that, the
petitioner was subjected to physical assault at
the hands of respondents 2 to 4 and on account
of the same, she was taken to General hospital,
Thiruvananthapuram. On the basis of the

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CRL.MC No.4734 of 2018 3

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information furnished from the General hospital,
Crime No.76/2007 was registered by the Medical
College Police Station for the offences
mentioned above. However, after conducting the
investigation, the Police submitted a refer
report and the petitioner had filed a protest
complaint against the same. The learned
Magistrate had taken cognizance of the aforesaid
offences on the protest complaint by taking the
same into the file as C.C.No.61/2008.

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3.From the part of the petitioner, PWs.1

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to 8 were examined during the course of pre-
charge evidence under Section 244 of Cr.PC.
After appreciating the said evidence, the

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learned Magistrate came to the conclusion that a
prima facie case is made out against the accused
persons and charges were framed against them
which were read over to them and they pleaded
not guilty. Thereupon, PWs 1 to 4 were recalled

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CRL.MC No.4734 of 2018 4

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for cross-examination. Later, on 7.6.2017, PWs.5

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to 8 were recalled and summons were issued to
them. On the subsequent postings, the said
witnesses did not appear and therefore coercive
steps were initiated against them. On
14.09.2017, PW8 was present and he was cross-
examined. On 19.10.2017, PW7 was present but the
cross-examination of the said witness was bound
over as the counsel for the accused sought time.
Later, none of the said witnesses appeared even
afterrepeatedwarrantswereissued.
Accordingly, on 24.2.2018, the evidence was
closed and the matter was posted for defence
evidence and hearing. On 24.3.2018, the accused
submitted that they have no defence evidence to
be adduced and accordingly, the matter was
posted for hearing on 21.4.2018. Thereafter, the
case was adjourned to 19.5.2018 and on that
date, the petitioner filed CMP No.2337/2018 for

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CRL.MC No.4734 of 2018 5

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re-opening the evidence and to recall PWs.5 to

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7. The said application was dismissed by the
learned Magistrate as per Annexure-IV order

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dated 2.6.2018. This Crl.M.C. is filed

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challenging the same.

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4.Heard Sri. S.Rajeev, the learned counsel
for the petitioner, Sri. K.Ramkumar, the learned
Senior Counsel for the respondents 2 to 4 and
Sri.Sudheer Gopalakrishnan, the learned Public
Prosecutor for the State.

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5.The contention of the learned counsel
for the petitioner is that, as the evidence was
closed without giving opportunity to recall and
examine PWs.5 to 7, it would cause prejudice to
them. According to them, witnesses sought to be
examined are doctors and if the recalling of the
said witnesses is not permitted, it would cause
prejudice to her. It is pointed out that, it is
a case in which the petitioner was brutally

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CRL.MC No.4734 of 2018 6

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manhandled and therefore the evidence of the
said doctors who had treated her are very much
relevant. On the other hand, the learned counsel
appearing for respondents 2 to 4 would oppose
the aforesaid contentions.

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6.On perusal of the records, it is seen

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that, the application was rejected by the
learned Magistrate mainly on the reason that,
despite several opportunities and repetition of
process against the said witnesses, they did not
turn up. It was also observed that the
petitioner was also not present and the
explanation offered by the petitioner for her

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non appearance that it was due to her illness
she could not appear. But the said explanation
was rejected on the ground that, the petitioner
used to appear before the court to accept the
cheque for withdrawal of the monitory relief.

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7.On going through the order sheet

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CRL.MC No.4734 of 2018 7

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maintained by the court in the said case, it can
be seen that, there were no serious latches on
the part of the petitioner. On several
occasions, summons and warrants were issued
against the said witnesses but they did not turn
up. The petitioner cannot be blamed for the non
co-operation of the witnesses particularly when
those witnesses are persons to whom no control
can be exercised by the petitioner. Evidently,
the witnesses were Government doctors and no
influence could be exerted by the petitioner to
ensure their appearance. Moreover, even though
non bailable warrants were seen issued against
the said accused persons, no further proceedings
were taken by the learned Magistrate to ensure
their appearance before the court and instead,
the evidence was closed on the ground that
despite taking repeated steps, the witnesses did
not turn up. In my view, the learned Magistrate

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CRL.MC No.4734 of 2018 8

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ought to have proceeded further and issue
further orders to ensure that the Police
procures the presents of the witnesses, and
instead of doing that, the evidence is seen
simply closed denying the opportunity to the
complainant to adduce evidence. This is not in
the best interest of justice.

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8.It is true that, the application to
re-open the evidence and to recall the said
witnesses was submitted by the petitioner when
the matter was posted for hearing by the court.
However, it is discernible from the order sheet
that, the evidence was closed on 24.2.2018 and
the application to re-open the evidence was
submitted on 24.5.2018 and therefore under no
circumstances it can be said that there was

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substantial delay on the part of the petitioner
in responding to the situation. Thus, taking
into account of the relevant aspects, I am of

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CRL.MC No.4734 of 2018 9

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the view that, it is only in the best interest

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of justice, the petitioner be granted a further
opportunity and the aforesaid witnesses be re-
called by re-opening the evidence as prayed for
in Annexure-III application submitted by the
petitioner.

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In such circumstances, this Crl.M.C. is

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allowed, Annexure-IV order passed by the
Additional Chief Judicial Magistrate Court,
Thiruvananthapuram in C.M.P.No.2337/2018 in
C.C.No.61/2008 is hereby set aside and the
prayer sought for in Annexure-III application is
allowed. The learned Magistrate is directed to
recall PWs.5 to 7 and issue appropriate process
to ensure their appearance.

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 Sd/-

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 ZIYAD RAHMAN A.A.
JUDGE

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pkk

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CRL.MC No.4734 of 2018 10

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APPENDIX OF CRL.MC 4734/2018

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PETITIONER’S ANNEXURES:
ANNEXURE ITRUE COPY OF THE WOUND CERTIFICATE ISSUED
FROM GENERAL HOSPITAL, THIRUVANANTHAPURAM.
ANNEXURE IITRUE COPY OF THE COMPLAINT FILED BY THE
PETITIONER.
ANNEXURE IIITRUE COPY OF THE PETITION FILED AS CMP
NO.2337/18 IN CC NO.61/2008.
ANNEXURE IVCERTIFIED COPY OF ORDER IN CMP NO.2337/18
IN CC NO.61/2008 PASSED BY THE ADDITIONAL
CHIEFJUDICIALMAGISTRATECOURT,
THIRUVANANTHAPURAM.

Shabimol v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shabimol v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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