Private complaint led to cognizance under IPC sections against a mother and her minor son for offences including wrongful restraint and abetment of suicide attempt. Quashing was refused for the first accused; the Magistrate was left free to enquire into the second accused's age and decide accordingly.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 23RD DAY OF JULY 2024 / 1ST SRAVANA, 1946
CRL.MC NO. 496 OF 2024
IN C.P. NO.34 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
KASARAGOD
PETITIONERS/ACCUSED:
1FATHIMA
AGED 36 YEARS
W/O SAJID ,PLOT NUMBER 86,GREEN CASTLE VILLA,
CHERUGOLI ,UPPALA,KASARAGOD, PIN - 671322
2 MOHAMMED SAHADAGED 16 YEARS
S/O SAJID , PLOT NUMBER 86,GREEN CASTLE VILLA,
CHERUGOLI ,UPPALA,KASARAGOD- 671322,
REPRESENTED BY HIS MOTHER AND GUARDIAN FATHIMA,
AGED 36 YEARS, W/O SAJID, PLOT NUMBER 86,
GREEN CASTLE VILLA, CHERUGOLI, UPPALA, KASARAGOD,
PIN - 671322
BY ADVS.
CHRISTINE MATHEW
AISWARYA E J VETTIKOMPIL
ABESH ALOSIOUS
SEN C PUTHUPPARAMPIL
RESPONDENTS/STATE:
1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031
2 AYISHATH RASHEEDA W/O M.A SHAMEER/MASTHIKUND HOUSE,MULIYAR POST,KASARGOD, PIN - 671542SR PP - RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. No. 496 of 2024
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ORDER
Dated this the 23 rd day of July, 2024
This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all proceedings in C.P. No.34/2023 on the files of the Judicial First Class Magistrate Court-II, Kasaragod, arising out of C.M.P. No.1502/2022. The petitioners herein are accused Nos. 1 and 2 in the above case.
Crl.M.C. No. 496 of 2024
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the accused are unwarranted, the learned counsel failed
to justify how the cognizance taken by the learned Magistrate is wrong as against the 1st accused. As on 01.07.2024, the learned counsel for the petitioners submitted that the 2nd petitioner/2nd accused is a minor and therefore, the cognizance taken against him by the Magistrate is erroneous.
This court had scheduled the enquiry regarding the age of Accused No. 2 in CP 34/2023 for 02.04.2024. On that day, the counsel for the accused stated that the matter was stayed by the Hon'ble High Court for four months and sought time to produce the stay order. The case was then posted on 08.07.2024, and counsel sought another adjournment to produce the stay order. The case is now scheduled for 27.08.2024 to produce the order. In the meantime, no enquiry regarding the age of the accused has been conducted.
However, the learned counsel for the accused submitted the birth certificate of
Crl.M.C. No. 496 of 2024
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Accused No. 2, namely Muhammed Sahad, which shows the date of birth as 07.05.2007. At the time of filing the complaint, the complainant did not state the name of Accused No. 2; instead, it was mentioned that Accused No. 2 is the son of the first accused. During the enquiry, the complainant filed a memo showing the address of Accused No. 2, and this court was inclined to take cognizance of both accused by adding Accused No. 2 as per the memo and issuing summons. According to the complaint, the incident occurred on 17.09.2021. Considering the birth certificate, it is discernible that Accused No. 2 was a minor at the time of the alleged incident. It is further submitted that the said birth certificate does not show the address of the child or his parents. However, the name of the mother is shown as Fathima, which is similar to the name of Accused No. 1 in the above case. Therefore, this report is submitted for your kind consideration. It is submitted that this court could not conduct the enquiry about the age of Accused No. 2 due to the circumstances stated above. I request to be excused for the same.
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quashment of the proceedings as sought for, as against the 1st accused is liable to fail, permitting trial against the 1st accused. Regarding the cognizance taken as against the 2nd accused, the learned Magistrate is at liberty to go for an enquiry and decide the matter accordingly, as per law.
Crl.M.C. No. 496 of 2024
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Registry is directed to forward a copy of this
order to the trial court, within three days, for information and further steps.
Sd/-
A. BADHARUDEEN JUDGE
SK
Crl.M.C. No. 496 of 2024
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APPENDIX OF CRL.MC 496/2024
PETITIONER ANNEXURES :
Annexure 1A TRUE COPY OF THE C.M.P. NO. 1502 OF
2022 BEFORE THE HON'BLE JUDICIAL FIRST
CLASS MAGISTRATE COURT,-II, KASARAGOD
DATED 05.11.2021
Annexure 2TRUE COPY OF DEPOSITION OF DEFACTO
COMPLAINANT DATED 06.12.2022
Annexure 3TRUE COPY OF DEPOSITION OF HUSBAND OF
DEFACTO COMPLAINANT DATED 06.12.2022
Annexure 4TRUE COPY OF THE NON-BAILABLE WARRANT
ISSUED AGAINST 1ST PETITIONER
Annexure 5TRUE COPY OF NON BAILABLE WARRANT ISSUED
AGAINST 2ND PETITIONER
Annexure 6TRUE COPY OF THE BIRTH CERTIFICATE OF
THE 2ND PETITIONER
RESPONDENTS’ ANNEXURES : NIL
2 issues framed by the court
Should proceedings in C.P. No.34/2023 be quashed against both accused?
Does the minority of the second accused require reconsideration of the cognizance taken against him?
6 provisions across 2 enactments
Fathima
Mohammed Sahad
State of Kerala
Ayishath Rasheeda
A. Badharudeen
As recorded by the court registry
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