UNNIKRISHNAN Vs. THENNGUM PALLIYIL VALSA THOMAS

JUDGEMENT

(1.) This is an application filed under S.482 of CrPC for quashing all further proceedings in CC No. 96/2004 on the file of J.F.C.M. Parappanangadi.

(2.) 1st petitioner is the husband of the 1st respondent. Petitioners 2 to 4 are stated to be the patients, who are undergoing treatment under the 1st petitioner who is a doctor. 1st respondent filed a private complaint before the learned Magistrate alleging that the 1st petitioner, who is her husband, forcibly entered in to the house in which the defacto complainant is residing by pushing open the front door and took away their child and thereby committed the offence punishable under S.365 and 456 of IPC The complaint was forwarded to the S.H.O. who registered the Crime as 241/2003. After investigation the final report was filed. The learned Magistrate after taking cognizance of the offence issued summons to the petitioners. The case is pending as CC No. 96 of 2004 on the file of J.F.C.M. Parappanangadi. Subsequently, the 1st petitioner settled the dispute between himself and the 1st respondent. Now they are residing together. The 1st respondent has agreed to withdraw the criminal case registered against the 1st petitioner. The offence alleged in CC No. 96 of 2004 being not compoundable, it is not possible to compound the offence. Hence this petition to quash the entire proceedings.

(3.) The mere fact that the offence alleged is non compoundable is not a ground to invoke the power conferred under S.482. But, I am of the view that this court can consider whether the final report discloses any offence. The incident was occurred in the house in which the 1st respondent and the child were residing together. 1st petitioner is the husband of the 1st respondent. He went into house in which his wife and child are residing. That act cannot be considered as an offence. S.456 deals with lurking house trespass or house breaking by night. S.443 of IPC deals with lurky (sic) house trespass. An entry into the house become lurking house trespass only if it is committed by a person after taking precautions to conceal such house trespass from some person who has some right to exclude or eject the trespasser from the building, tent or vessel which is the subject of trespass. The averment in the final report shows that the petitioner merely walked into the building in which the 1st respondent and her child are residing and opened the front door and entered into the house. There is absolutely no averment in the final report or the statements of any at the witness to the effect that the 1st respondent made any act with an intention to conceal his presence. On the other hand the averment is that he forcibly opened the door and entered into the house ignoring the protest of the 1st respondent. So absolutely no element of lurking trespass is made out in the case. The next offence alleged is kidnapping under S.365. Admittedly petitioner is the father and natural guardian of the child. When the father takes away his own child that will not constitute an offence of kidnapping. To constitute an offence under S.365, the minor must be taken from the possession of the lawful guardian. When the natural guardian and father himself takes away his own child, no offence punishable under S.365 is made out. The other offence alleged is under S.506(ii). There is no statement in the final report or in the 161 statements of witnesses to constitute an offence punishable under S.506 (ii). Further the 1st petitioner and the 1st respondent had settled the disputes and they are stated to be residing together. In Joshy v. State of Haryana ( 2003 (4) SCC 675 ) it was held that in such cases the High Court can interfere and quash the further proceedings. That being the position, I am of the view that the entire proceedings in CC No. 96 of 2004 are liable to be quashed because it does not disclose any of the offence alleged in the final report.