SANDYA K. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as accused No.1 in the instant Crime No.470/2019 of Dharmadam Police Station, which has been registered for offences punishable under Sec.511 of Sec.361, 363 and 506 of the I.P.C and Secs.75 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The abovesaid Crime has been registered pursuant to the directions issued by the learned Magistrate to the Police to register a crime and conduct investigation in respect of the allegations made in the private criminal complaint filed by the husband of the petitioner herein.

(2.) The prosecution case in short is that the petitioner herein (A1) is the wife of the de facto complainant and that a girl child, aged 10 years, was born in their wedlock and the petitioner developed an extra marital love affair with A2 and that on 18.9.2019 at about 9:00 a.m., at the instigation of A2, she had eloped with him by neglecting her 10 year old child by abandoning her with the parents of her husband. That subsequently, A2 sent a quotation to kidnap the girl, who is a minor and he had also threatened the de facto complainant through phone and thereby the accused persons have committed the abovesaid offences.

(3.) Sri.P.Vijayabhanu, learned Senior Counsel, instructed by Ms.Sruthy N.Bhatt, learned counsel for the petitioner would submit that the allegations of offence as per Sec.511 of Sec.361 of the I.P.C, will not lie as against the petitioner (A1) as the allegations are mainly attributed against A2, who had allegedly done some act. Further that even going by the admitted allegations in the prosecution materials, the case is that the petitioner had left the child with the parents of her husband and then had gone along with A2, etc., and the said act said to have been committed by the mother of the child leaving the child with the latter's paternal grandparents cannot be held to be abandonment of the child as envisaged in Sec.75 of the JJ Act and the said act cannot be said to be an act of assaulting, abandoning, abusing, exposing or willfully neglecting the child in a manner likely to cause such child unnecessary mental or physical suffering, etc., and therefore, none of the ingredients of the operative portion of Sec.75 is attracted in this case. Further that, the petitioner herein (A1) was subjected to series of abuse by her husband miserably and she find no other way than to leave the matrimonial home and before that she had left the child with the child's paternal grandparents and therefore even if it is assumed for argument sake that Sec.75 is attracted against the petitioner, then the petitioner could claim the benefit of the first proviso to Sec.75 of the JJ Act. Accordingly it is urged by the learned Senior Counsel that at any rate, custodial interrogation of the petitioner, who is a woman, is not necessary for investigation in this case and this Court may grant anticipatory bail to the petitioner subject to stringent conditions.