SUDHEESH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision petitioners herein are the five accused in C.C No.656 of 2009 of the Judicial First Class Magistrate -I, Varkala, wherein, they are being prosecuted under Section 498(A) of the Indian Penal Code. The complainant in the case was married by the 1st revision petitioner herein on 18.1.2009, but the matrimony did not last long. On 29.7.2009, the wife filed a complaint before the learned Magistrate, alleging that she had been mentally and physically ill -treated by her husband and the in -laws. The 1st petitioner herein is the husband, and the petitioners 2 and 3 are the parents -in -law. The 4th petitioner is the grand -mother of the 1st petitioner, and the 5th petitioner is the brother of the 1st petitioner. All the inmates of the matrimonial home were arraigned as accused in the complaint. Anyway, cognizance was taken after necessary enquiry, and summons was ordered to the accused. Before commencement of pre -charge evidence under Section 244 of Cr.P.C, the petitioners filed application before the trial court for discharge under Section 245 of Cr.P.C. C.M.P.6037 (A) of 2012 was filed by the accused Nos.2 to 5 and C.M.P. No.6457 of 2013 was filed by all the five accused.

(2.) ON hearing both sides, the learned Magistrate found that order of discharge cannot be passed. The learned Magistrate found some materials in the complaint, prima facie justifying the allegations, and so decided that an order of discharge before recording pre -charge evidence cannot be made. Accordingly, the two applications were dismissed by order dated 31.5.2013. The said order is under challenge in this revision petition.

(3.) ON a perusal of the complaint, I could see some allegations against the in -laws also but, the Court will have to examine the whole materials including the evidence adduced under Section 244 of Cr.P.C to find whether the complainant's complaint in fact contains definite allegations of mental and physical harassment by a course of cruel conduct. The learned Magistrate will have to find whether the in -laws were unnecessarily dragged to Court and arraigned as accused for some sort of satisfaction. If definite and satisfactory materials are not there against the in -laws, the question of discharge under Section 245(1) can be thought of by the trial court. However, allegations are there against the husband, and it is submitted that other proceedings are also pending, in connection with the matrimonial dispute. The trial court will have to bear -in - mind the unhealthy practice these days to arraign all the in - laws or all the inmates of the matrimonial home when the aggrieved wife proceeds to file complaint against her husband. Of course, let proper and judicious decision be taken by the trial court when moved for discharge under Section 245(1) of Cr.P.C. As rightly held by the trial court, discharge under Section 245(2) of Cr.P.C, before recording pre -charge evidence under Section 244 of Cr.P.C cannot be considered, when some materials are there. Whether those materials are sufficient to frame charge, can be decided while proceeding under Section 245(1) of Cr.P.C. Thus, I find that this revision petition can be closed without prejudice to the right of the revision petitioners to make application under Section 245(1) of Cr.P.C, after pre -charge evidence is recorded by the trial court under Section 244 of Cr.P.C.