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2025 DIGILAW 548 (KER)

Devanandh P. P. S/o. Narayanan v. State Of Kerala

2025-03-11

A.BADHARUDEEN

body2025
ORDER : Accused Nos. 2 to 4 in C.C. No. 433 of 2023, pending before the Judicial First Class Magistrate Court, Thalassery, arising out of Crime No. 815 of 2022 of Thalassery Police Station, have filed this Crl. M.C. under Section 482 of the Code of Criminal Procedure (Cr.P.C.), and the prayers are as follows: i. “Quash all further proceedings in Annexure-A2 final report against the petitioners in Crime No. 815 of 2022 of Telicherry police station, now pending before the Judicial First Class Magistrate Court, Thalassery as C.C.No. 433 of 2023 and ii. Issue such other order or direction, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 2. Heard the learned counsel for the petitioners, the learned counsel appearing for respondents 3 and 4, and the learned Public Prosecutor. Perused the records submitted by the learned counsel for the petitioners, also perused the counter-statements and documents submitted by the 3rd respondent. Case diary produced by the learned public prosecutor also has gone through. 3. On the facts of this case, it is noted that the marriage between Nidhin Devanandh (the 1st accused), the son of the 2nd and 3rd accused and the 4th respondent was solemnized on 28.02.2016. At the time of the marriage, the 3rd respondent gave 200 sovereigns of gold ornaments to the 4th respondent. According to the 3rd respondent, a portion of the said gold ornaments was purchased from Krishna Jewellery, and the remaining items were brought from Abu Dhabi. Pursuant to the marriage, both couples went abroad and before that, they kept the 200 sovereigns of gold ornaments in locker No. 154 at the Indian Overseas Bank, Thalassery, in their joint names. During their joint residence, a male child was also born to them. The further allegation is that, when 4th respondent stayed in America along with the 1st accused, he persecuted the 4th respondent demanding that her salary be transferred to his name. The specific allegation is that, thereafter, in connivance with the 2nd accused, who held the position of Manager at the Indian Overseas Bank, Thalassery, he, along with the 5th accused, the then manager, allowed the brother of the 1st accused to operate the locker. Accordingly, on 24.03.2022 and 12.04.2022, the 4th accused opened the locker, removed the gold ornaments, and misappropriated 200 sovereigns of gold kept therein. Accordingly, on 24.03.2022 and 12.04.2022, the 4th accused opened the locker, removed the gold ornaments, and misappropriated 200 sovereigns of gold kept therein. After the investigation, Annexure-A2 final report was filed on 02.04.2023, alleging that accused Nos. 1 to 4 committed offences punishable under Sections 498A , 420, 406 , 409 read with 34 of the IPC , and that the 5th accused committed offences punishable under Sections 420 , 406, and 409 of IPC . 4. While challenging the prosecution initiated against the petitioners, who are the father, mother, and brother of the 1st accused, the learned counsel for the petitioners submitted that mere general and omnibus allegations alone would not constitute an offence punishable under Section 498A of the IPC . Furthermore, upon reading the First Information Statement (FIS) given by the 3rd respondent, it is argued that the same does not justify the registration of this crime. Learned counsel relied on the decision of the Apex Court reported in 2022 KHC Online 6153 Kahkashan Kausar @ Sonam and Others v. State of Bihar and Others, where the Apex Court dealt with a matter involving an offence punishable under Section 498A of the IPC . After referring to earlier decisions of the Apex Court, it held in paragraphs 16 and 17 as follows:" “16. In Geeta Mehrotra and Another v. State of UP and Another, 2012 KHC 4612 : (2012) 10 SCC 741 2012 (10) SCALE 299 AIR 2013 SC 181 : (2013) 1 SCC (Civ) 212 : (2013) 1 SCC (Cri) 120, it was observed: "21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G. V. Rao v. L. H. V. Prasad and Others reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: "there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. Their Lordships observed therein with which we entirely agree that: "there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different Courts." The view taken by the judges in this matter was that the Courts would not encourage such disputes. 17. Recently, in K. Subba Rao v. The State of Telangana , 2018 KHC 6625 : (2018) 14 SCC 452 2018 (2) KLD 766 2018 (10) SCALE 112 AIR 2018 SC 4009 it was also observed that: "6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out." 5. He also referred to the decision of this Court reported in 2024 ICO 880, Shyamala Bhaskar v. State of Kerala and Anr., and pointed out that in paragraph No. 9, it was held as follows: “9.It is noticed that in matrimonial disputes, in order to wreak vengeance against the husband and relatives of the husband, certain wives initiate criminal proceedings on the strength of vague and omnibus allegations against the parents, sisters, brothers and other relatives of the husband with ulterior motive to put them under the veil of prosecution involving non-bailable offences and to face the ordeal of criminal prosecution and trial by the parents, sisters, brothers and other relatives of the husband, so as to malign and defame their image in the society. In such cases, it is the duty of the court to analyse materials available when quashment is sought whether the allegations specifically state anything dealt under Section 498A so as to prosecute the accused for the said offences, by subjecting themselves for trial. The cases where no specific allegations to go for trial, prima facie, such cases shall be quashed by the High Court by invoking power under Section 482 of the Cr.P.C. At the same time, when specific allegations pointing out the overt acts which would attract the offence under Section 498A could be seen, prima facie, from the prosecution case, such cases shall not be quashed’. 6. It is pointed out by the learned counsel for the petitioner further that going by the statement given by the 4th respondent the allegation of cruelty occurred abroad and therefore trial could not be proceeded without sanction under Section 188 of Cr.P.C. In this connection he has placed decision of this Court reported in 2024 ICO 798 Darvin Dominic v. State of Kerala & Anr, where this Court considered the impact of sanction under Section 188 of Cr.P.C. and held in paragraph Nos. 10 and 11 as under:- “10. In a three Judge Bench of the Apex Court in Sartaj Khan v. State of Uttarakhand (2022 LiveLaw (SC 321, 2022 (2) KHC 846 : 2023 Cri LJ 441 :: 2022 ICO 503 held that if the offence was not committed in its entirety, outside India, the matter would not come within the scope of Section 188 Cr.P.C. and there is no necessity of any sanction as mandated by the proviso to Section 188. 11. Thus, while analysing what are the cases for which proviso to Section 188 of Cr.P.C. would apply, it is held that when an offence is committed outside India- (a) by a citizen of India, whether on the high seas of elsewhere; or (b) by a person, not being the citizen, on any ship or aircraft registered in India, the offender may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found, where proviso to Section 188 of Cr.P.C. would apply and in such cases, previous sanction of the Central Government is necessary. At the same time, if part of the overt acts or at least one instance among the overt acts alleged to be committed in India, sanction under Section 188 of Cr.P.C. is not necessary in such cases. 7. Apart from that, another decision of the Apex Court in 2010 KHC 4571 , Preeti Gupta and Another v. State of Jharkhand and Another, was cited, and in paragraph No. 17, it was held as follows:" “17. The powers possessed by the High Court under S.482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but Court's failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage”. 8. Repelling the contentions raised by the learned counsel for the petitioners, the learned counsel for respondents 3 and 4 submitted that Annexure-R3F is the statement recorded by the police during the investigation of this case as that of the 4th respondent, Drishya, in which she disclosed the overt acts that occurred both in India and abroad. Therefore, no sanction under Section 188 of the Cr.P.C. is necessary in the instant case. The learned counsel also read out Annexures-R3A to E to highlight the seriousness of the allegations and to assert that the prosecution allegations involving the role of the petitioners are well-founded prima facie, making trial absolutely essential. Therefore, the quashment would necessarily fail. 9. The learned Public Prosecutor also shared the argument of the learned counsel for respondents 3 and 4 and zealously opposed the quashment. Therefore, the quashment would necessarily fail. 9. The learned Public Prosecutor also shared the argument of the learned counsel for respondents 3 and 4 and zealously opposed the quashment. In this matter, Annexure R3F is the statement of the wife of the 1st accused, the 4th respondent herein produced by the learned counsel for respondents 3 and 4. The statement is to the effect that the marriage between the 1st accused and the 4th respondent was solemnized on 28.02.2016. According to the 4th respondent, while they were staying abroad, the 1st accused used to scold and assault her over minor issues. Further the statement would recite that during April-May 2019, while she was in her native country, the 1st accused compelled her to return and reside in Thalassery, his family house. While staying there, the father and mother of the 1st accused demanded money earned by the father of the 4th respondent from Abu Dhabi, as well as additional gold ornaments, and thereby subjected her to both mental and physical tortures. Further, it is alleged that while staying there, the lock of her bedroom was broken, and she was prevented from having a sound sleep after closing the door. Later, when she returned to America, her father-in-law and mother-in-law accompanied her and continued the demand for more gold ornaments, subjecting her to further physical and mental tortures. Further they demanded the opening of locker No. 154 to release the 200 sovereigns of gold ornaments which were kept jointly in the names of the 1st accused and 4th respondent. That request was denied by her. Later, they compelled her to authorize the 2nd accused to operate the locker alone, but this request was also denied by the 4th respondent. Subsequently, when she enquired with the bank, it was informed that the locker was opened on 24.03.2022 and 12.04.2022 by Midhun Devanandh, the brother of the 1st accused, under the influence of the 2nd accused, a retired manager of the bank, where the gold was kept at the locker. This was done in collusion with the current manager, the 5th accused. As a result, the 200 sovereigns of gold ornaments were misappropriated by the accused persons. 10. In this connection, the learned counsel for respondents 3 and 4 pointed out further that a detailed counter statement, highlighting the overt acts has been filed. This was done in collusion with the current manager, the 5th accused. As a result, the 200 sovereigns of gold ornaments were misappropriated by the accused persons. 10. In this connection, the learned counsel for respondents 3 and 4 pointed out further that a detailed counter statement, highlighting the overt acts has been filed. It is submitted that, on noticing the unauthorized opening of the locker by the 4th accused, when a complaint was lodged before the Ombudsman (as per Annexure R3E), a compensation of Rs.10,600/- (ten thousand six hundred rupees), equivalent to a hundred times of the prevailing locker rent, was ordered in favor of the respondent, based on the finding of negligence by the bank for adding a new holder without the consent of both existing holders. As pointed out by the learned counsel for respondents 3 and 4, Annexure R3B, a Gmail correspondence from the Indian Overseas Bank, Thalassery Branch to the 4th respondent, explains how locker No. 154 was opened by the 4th accused. As per Annexure R3D, paragraphs 5 to 7 state the following: “5. As insisted by the Bank, Mr. Nithin Devanand forwarded his request to add his brother, Mithun Devanand for operating his locker as a special case by way of email dated 18.03.2022. In order to consider the request, the latest locker register which is being maintained from 01.01.2021 was verified and the software Finacle only shows the name of Mr.Nithin Devanand who is authorised to operate the locker. Thereafter Mr.Nithin Devanand was contacted over the phone through video call and confirmed the reason for adding his brother as a special case. 6. After the due diligence, Mr.Mithun Devanand was added to locker 154 on 19.03.2022 and Mr.Mithun Devanand was permitted to operate the locker. 7. On 19.05.2022 branch received a mail from Mrs.Dhrishya Parassini requesting freezing of the locker number 154 from further operations by stating she is having some family issues with her husband, Mr.Nithin Devanand and that she is intended to file a divorce petition against him. On receipt of the email, the Bank froze the operation of the locker with effect from 19.05.2022. On receipt of the email, the Bank froze the operation of the locker with effect from 19.05.2022. The bank has also conducted an enquiry and on examining the previous registers regarding the operation of the locker, it was seen that Mrs.Dhrishya Parassini was also a joint holder of the above locker who was added as a joint holder at the request of Mr. Nithin Devanand on 17.03.2016. She also operated the locker jointly and solely several times during 2016.” 11. That apart, the learned counsel for respondents 3 and 4 pointed out that later, in Annexure R3C, the opening and functioning of locker No. 154 was seized. It is further pointed out that, in Annexure R3B, the following steps are specified to substitute another person in the locker. “Where the non-resident execute letter of authority favouring a third person (resident or non-resident) following are to be observed; i) Letter of authority in NF.114 should be signed by both the hirers in presence of a notary public or the first secretary of authorized official to the Indian Embassy/Consulate. or Letter of authority is to be witnessed by any other non-resident whose signature could be verified at our end. or Letter of authority signed by the hirer when they are in India in the presence of our Bank officials. ii) Specimen signature of the authorized person should be countersigned by the hirers" 12. In addition to that, it is pointed out that Annexure R3E is the complaint lodged by the 4th respondent against the 1st accused on 01.03.2022. 13. Adverting to the rival submissions, the questions that arise for consideration are:- 1. Whether in the facts of this case sanction under Section 188 of the Cr.P.C. is necessary to prosecute the petitioners? 2. Whether the allegations against the petitioners are mere general and omnibus in nature so as to hold that none of the offences made out prima facie, so as to allow the quashment prayer? Point No.1 14. Whether in the facts of this case sanction under Section 188 of the Cr.P.C. is necessary to prosecute the petitioners? 2. Whether the allegations against the petitioners are mere general and omnibus in nature so as to hold that none of the offences made out prima facie, so as to allow the quashment prayer? Point No.1 14. As per the ratio of the Apex Court decision Sartaj Khan supra followed in Darvin Dominic’s case, the law is well settled that when an offence is committed outside India- (a) by a citizen of India, whether on the high seas of elsewhere; or (b) by a person, not being the citizen, on any ship or aircraft registered in India, the offender may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found, where proviso to Section 188 of Cr.P.C. would apply and in such cases, previous sanction of the Central Government is necessary. At the same time, if part of the overt acts or at least one instance among the overt acts alleged to be committed in India, sanction under Section 188 of Cr.P.C. is not necessary in such cases. 15. In the instant case, based on the statement of the 4th respondent, which would disclose the allegations, the main part of allegations of cruelty and misappropriation of gold ornaments—by illegally breaking open the locker without the consent of the 4th respondent—occurred in India, where a lesser portion of the overt acts took place abroad. In view of the settled legal position, sanction under Section 188 of the Cr.P.C. is not necessary in order to prosecute the petitioners. Point No.2:- 16. It is true that, as settled in Kahkashan Kausar @ Sonam’s case and Shyamala Bhaskar’s cases cited supra, sweeping and omnibus allegations, without specifying instances of the overt acts, are insufficient to hold prima facie commission of an offence under Section 498A of the IPC . This provision may apply to other offences also. However, when the allegations are specific and certain, the accused are liable to be prosecuted for the allegations, which would show that, prima facie, the allegations are made out. This provision may apply to other offences also. However, when the allegations are specific and certain, the accused are liable to be prosecuted for the allegations, which would show that, prima facie, the allegations are made out. In the instant case, as per the statement of the 4th respondent, as extracted above, the allegations of cruelty—specifically, demanding more gold ornaments and money from the 3rd respondent at the instance of accused Nos. 1 to 3 are clearly stated. Furthermore, the prosecution alleges that, without the consent of the 4th respondent, the locker jointly held in the names of the 4th respondent and the 1st accused was opened by the 4th accused after illegally inserting himself in place of the 1st accused. Thus, prima facie, the allegations are very serious, and the prosecution case that the petitioners herein committed offences under Sections 498A , 420, 406, and 409 read with 34 of the IPC has been specifically made out. In such a case, the quashing of the case and restraining the prosecution from adducing evidence in support of the allegations is not warranted. 17. In view of the above, the quashment sought for is liable to fail. In the result, this petition is dismissed and the interim stay in proceed with the case stands vacated. The trial court is directed to expedite the trial as per law.