ANNIE JYOTHIS Vs. STATE OF KERALA

JUDGEMENT

(1.) This Crl. MC is preferred by the widow, the complainant in Annexure A1 complaint, aggrieved by Annexure A3 order of the court below by which the court declined the request of the petitioner to send the complaint for investigation under S.156(3) of Cr.P.C.

(2.) The petitioner herein preferred a private complaint, CMP No. 2782/2005, a copy of which is produced along with this Crl. MC as Annexure A1 before the Judicial Magistrate of the First Class-II, Aluva under S.190 and 200 of the Cr.P.C. for the offences punishable under S.302 read with S.201 and 34 of the Indian Penal Code. Annexure A1 is the complaint dated 26-9-2005. A perusal of Annexure A1 complaint would show that the complainant got married to one Mr. Bigil Paul Kaliparambil Veedu. South Kalamassery, Development Plot P.O., on 20.6.2004 in accordance with the Christian religious rites and customs at St. Michel's Church, Kakkanadu. Accused Nos. 1 and 2 in the complaint are the parents of her husband. 3rd accused is the sister in law of the complainant and the 4th accused is her husband. The allegation in brief as disclosed from Annexure A1 complaint is that, after the marriage the accused were harassing the complainant and they were demanding more wealth from the complainant's house towards dowry. It is also the case of the complainant that the accused always found sadistic pleasure in nagging the complainant's husband saying that he is impotent and is incapable of consummating the marriage. According to the complainant, the harassment continued and the same was reached in an unbearable and intolerable stage by December, 2004. On giving information about the situation to her parents, she was taken back to her parental home. Subsequently, all of the accused assured the complainant that there will not be any problem in future and that the complainant's husband will arrange a rented house and that they will start separate residence. According to the complainant, on the basis of the said assurance, the complainant was brought back to the matrimonial home by her father by the second week of December. According to the complainant, even thereafter, the harassment continued demanding more money and according to the complainant, she was threatened on several occasions. It is specifically stated in the complaint that her father, taking into account her wellbeing, purchased a property in the joint names of the complainant and her husband. The said incident made the accused accelerating the harassment and the situation became more aggravated. It is also stated that the complainant was having fond regards for the institution of marriage and therefore she convinced her father that she would somehow manage the situation at the matrimonial home. After much persuasion, the father of the complainant had taken back the complainant to her matrimonial home on 22-7-2005 and entrusted her to her husband. It is also stated in the complaint that she was assaulted in front of her father and thereafter also the complainant was continued to harass by the accused. It is specifically stated that the complainant's husband had taken her back to her parental home and had gone to his work. He had returned to the complainant's house after the work on the next day, i.e. on 23-7-2005 and had returned to his residence after some time. It is also specifically averred in the complaint that on 23-7-2005 at 9 p.m., the husband of the complainant informed her over telephone that accused Nos. 3 and 4 were also in his house and all the accused were compelling him to go out of his house. It is also stated that the complainant was later told by her husband that the harassment towards him continued the whole night. It is also stated that on 24-7-2005 at about 9 a.m., the husband of the complainant informed her that he will soon be reached her parental house. In paragraph 12 of the complaint it is stated that on 24-7-2005 at 11.30. a.m a neighbour by name Antony told the complainant's father that a neighbour of the complainant's husband's residence informed him over telephone that the husband of the complainant is admitted in the hospital in a very serious condition. On getting such information, the complainant along with her relatives rushed to Ernakulam Medical Centre Hospital, Palarivattom wherein he was admitted in the intensive care unit in a critical condition. According to the complainant, none of the relatives of the husband was in the hospital and no money was spent by any of the accused for the treatment of her husband. In paragraph 13 of the complaint, it is specifically averred that the 4th accused who is a Sub Inspector in Kerala Police had influenced the hospital authorities and thereby restrained them from giving intimation regarding the incident and the factum of admission of the husband of the complainant in hospital to the local police in time and thereby prevented them from collecting the evidence from the place of occurrence and circumstances of the incident. In the same paragraph it is averred that complainant's husband became conscious on 1-8-2005 and the complainant was allowed to talk to him on 2-8-2008. At that time the husband of the complainant told her that he had not consumed poison by himself and that a complaint has to be preferred to the police. It is further stated in the complaint that the complainant or her father was not in a condition to prefer a complaint on 2-8-2005 as suggested by her husband. It is further stated in the complaint that the husband of the complainant became unconscious again on 3-8-2005 and he continued in the unconscious condition there after and died on 7-8-2005 at about 8.30 p.m. It is further stated that the accused have removed the articles and all the things and belongings of the husband of the complainant from his residence and the accused have changed the entire scene of the place of occurrence and tampered the evidence. The accused have not cared even to receive the dead body of the complainant's husband after postmortem in the Medical college Hospital, Alappuzha. In paragraph 15 of the complaint it is stated that the entire subsequent acts of the accused were very suspicious and pointing towards their guilty consciousness. Accordingly, the Ist accused was admitted by the other accused in the Sacred Heart Hospital, at Painkulam, Thodupuzha after the incident while the husband of the complainant was in hospital. It is also stated that the accused who are claiming that the husband of the complainant consumed poison is not disclosing the incident or its details to the complainant or to her relatives. The accused are giving different explanations to others regarding the incident. According to the complainant, accused Nos. 2 to 4 have purposefully admitted the Ist accused in mental hospital to create an impression that he is a mental patient with a calculated view to prevent disclosure of the real facts by him. In paragraph 17 it is further stated that the above said acts of the accused up to 24-7-2005 are offences punishable under S.498A and 306 of IPC. It is further submitted that there are valid and strong circumstantial evidence to hold that Bigil Paul had not consumed poison by himself and that the accused have forcibly administered poison to him and murdered him. The accused had tampered some of the strong material evidence and thereby to vanish evidence in support of the adverse circumstances of the incident. Therefore according to the complainant, the act of the accused amounts to offences punishable under S.302 read with S.201 and 34 of the IPC. In paragraph 18 of the complaint, it has been stated that the incident took place within the limits of Kalamassery Police Station and the father of the complainant had preferred petitions on 8-8-2005 and also on 28-8-2005. But the police had not taken any effective measures due to the undue influence and pressure of accused persons. In paragraph 19, the relief is moulded in the following words: "In the interest of justice it is just and necessary to take this complaint into the file of this Honourable Court and proceed against the accused or to forward the same to Kalamassery Police Station for investigation under S.156 of the Code of Criminal Procedure and prayed accordingly". In the complaint itself, a list of certain witnesses and documents are shown. (emphasis supplied).

(3.) Counsel for the petitioner submitted that Annexure A1 complaint dated 26-9-2005 was filed on the same date which was numbered as CMP 2782/2005 and the same was adjourned to 15-10-2005 on which date the sworn statement of the complainant was taken and it was again adjourned. According to the counsel for the petitioner, since the complaint was not sent for investigation under S.156(3), the complainant had preferred Annexure II petition on 19/10/2005 which was adjourned to 4-11-2005 for hearing. Petitioner was heard on 4-11-2005 and the same was adjourned for orders to 8-11-2005. Since the order was not ready on 8-11-2005, the petition was again adjourned to 11-11-2005 and again adjourned to 14-11-2005 on which date the order was passed in Annexure A2 petition. Annexure A3 is the order dated 14-11-2005 in CMP 2999/2005. According to the Magistrate, the request for entrusting investigation under S.156(3) with the police cannot be entertained since the sworn statement of the complainant is already recorded and the complaint stands posted for further enquiry as the offence alleged is exclusively triable by court of Session and therefore according to the Magistrate, statements of the entire witnesses have to be recorded and the court has to consider whether offences as alleged in the complaint are made out. It is also stated by the Magistrate that the court had already decided to proceed under S.202(2) Cr.P.C. and the statement of the complainant is also recorded and now the court cannot revert back and forward the complaint to police for investigation and call for report as specified under S.202 (1) Cr.P.C. Another reason given by the court is that since the court had started the mandatory enquiry on the complaint as specified by proviso (a) to S.202(1) Cr.P.C., by recording the statement of the de facto complainant, the court cannot give a go bye to the enquiry initiated or conducted under proviso (a) to S.202 (1) Cr.P.C and forward the complaint to police for investigation. It is the above order challenged in this petition and prays that Annexure II petition may be allowed.