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2025 DIGILAW 690 (KER)

Arun G Nair v. State Of Kerala

2025-03-21

KAUSER EDAPPAGATH

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ORDER : KAUSER EDAPPAGATH, J. The above criminal miscellaneous case and criminal revision petition are connected. The parties are one and the same. The Annexures are shown as referred to in Crl. M.C.No.5423/2023. 2. The petitioner married the daughter of the 2 nd respondent, viz., Monisha, on 1/9/2014. At the time of the marriage, the petitioner was working as a male nurse in Australia and his wife was working as a Software Engineer at Ernakulam. After the marriage, they left to Australia on 7/9/2015. The wife of the petitioner committed suicide in Australia by hanging at their residence on 7/2/2017. On 17/2/2017, the 2 nd respondent submitted Annexure II complaint to the Superintendent of Police, Kottayam seeking investigation into the untimely death of her daughter. It was alleged that the deceased was subjected to physical and mental cruelty by the petitioner which forced her to commit suicide. On 19/2/2017, the 2 nd respondent submitted another complaint (Annexure III) in continuation to her earlier complaint to the Superintendent of Police, Kottayam seeking to register a crime under Section 498A of IPC and to investigate the same. Annexure III complaint was forwarded to the Ponkunnam Police who registered Annexure IV crime against the petitioner alleging offences punishable under Sections 406, 420 and 498A of IPC. During the course of investigation, the mother and sister of the petitioner were also arrayed as accused in the crime. After investigation, the final report was submitted before the Judicial First Class Magistrate Court – II, Kanjirappilly (for short, 'the Magistrate Court') on 14/6/2017 against the petitioner, his sister and his mother for the offences punishable under Sections 294(b), 323, 406, 420, 498A r/w 34 of IPC. The learned Magistrate took cognizance of the offences and numbered the case as CC No.487/2017. 3. The petitioner, along with his mother and sister, filed Crl.M.C.No.6565/2017 before this court to quash the final report and all further proceedings in CC No. 487/2017. This court, as per Annexure VI order dated 22/10/2019, quashed the entire proceedings against the mother and sister of the petitioner. In respect of the petitioner, offences under Sections 406 and 420 of the IPC were quashed, and offences under Sections 294(b), 323 and 498A of the IPC were maintained and allowed to proceed. Though the petitioner challenged Annexure VI order before the Supreme Court, he did not succeed. 4. In respect of the petitioner, offences under Sections 406 and 420 of the IPC were quashed, and offences under Sections 294(b), 323 and 498A of the IPC were maintained and allowed to proceed. Though the petitioner challenged Annexure VI order before the Supreme Court, he did not succeed. 4. The 2 nd respondent then filed Annexure VIII application before the Magistrate Court seeking further investigation into the matter. The Magistrate Court allowed Annexure VIII application and directed further investigation. After further investigation, CW25, the investigating officer filed Annexure X final report dated 2/4/2022. However, the Magistrate Court directed the police to conduct further investigation into the matter as per the order dated 10/10/2022. In pursuance of the order passed by the Magistrate Court, the Dy. S.P Crime Branch (CW26) took over further investigation. On 17/2/2023, CW26 submitted a final report stating that the petitioner has committed the offences punishable under Sections 294(b), 323 and 498A of IPC. The 2 nd respondent thereafter filed Annexure XIV application before the Magistrate Court stating that the offence punishable under Section 304B of IPC was made out in the final report and, therefore, prayed for an order to add Section 304B of IPC. The petitioner filed Annexure XV objection to Annexure XIV inter alia contending that there are no materials against him to add Section 304 B of IPC as alleged. The Magistrate Court, as per Annexure XVI order dated 8/6/2023, allowed Annexure XIV application, holding that a prima facie case is made out against the petitioner under Section 304B of IPC. Crl.R.P.No. 718/2023 has been filed challenging Annexure XVI order. Crl. M.C.No.5423/2023 has been filed to quash all further proceedings pursuant to Annexures X and XIII final reports. 5. I have heard Sri. K. Rajeev, the learned counsel for the petitioner, Sri. C. S. Ajith Prakash, the learned counsel for the 2 nd respondent, and Sri. M. P. Prasanth and Smt. C. Seena, the learned Public Prosecutors. 6. The learned counsel for the petitioner submitted that in any of the final reports, none of the ingredients of the offence under Section 304B of IPC is present except the fact that the death had occurred within seven years of marriage and hence, the Magistrate Court committed gross illegality in passing Annexure XVI order adding Section 304B of IPC. 6. The learned counsel for the petitioner submitted that in any of the final reports, none of the ingredients of the offence under Section 304B of IPC is present except the fact that the death had occurred within seven years of marriage and hence, the Magistrate Court committed gross illegality in passing Annexure XVI order adding Section 304B of IPC. The learned counsel further submitted that the impugned order does not give any reasons to add Section 304B of IPC and hence, is liable to be set aside. On the other hand, the learned counsel for the 2 nd respondent submitted that in Annexure XIII final report, there are sufficient materials to show that soon before the death, the deceased was subjected to cruelty by the petitioner in connection with the demand for dowry and hence the Magistrate Court was absolutely justified in passing the impugned order. 7. The only challenge is against the incorporation of the offence under Section 304B of IPC. According to the petitioner, there is absolutely no material against him to add Section 304B of IPC. In order to attract an offence under Section 304B of IPC, the death of the woman has to occur otherwise under normal circumstances within seven years of marriage and it must be shown that she was subjected to cruelty by her husband or relatives for, or in connection with, the demand for dowry. Thus, cruelty or harassment must be shown to have been meted out to the woman soon before her death. Admittedly, the death of the wife of the petitioner occurred within seven years of marriage. The crucial question is whether there is sufficient material to show that soon before death, the deceased was subjected to cruelty or harassment by the petitioner in connection with the demand for dowry. In Annexure III complaint preferred by the 2 nd respondent before the Superintendent of Police, Kottayam, the prayer was to register a case under Section 498A of IPC and to investigate the matter. In all three final reports, the investigation agency did not choose to incorporate the offence under Section 304B of IPC against the petitioner. In Annexure VIII application, the specific case of the 2 nd respondent was that the offence under Section 304B was also involved, and the investigation has to be conducted by adding the said Section. In all three final reports, the investigation agency did not choose to incorporate the offence under Section 304B of IPC against the petitioner. In Annexure VIII application, the specific case of the 2 nd respondent was that the offence under Section 304B was also involved, and the investigation has to be conducted by adding the said Section. In Annexure IX objection to the said application, the petitioner took a specific contention that there was no need for further investigation as there was absolutely no material to make out an offence punishable under Section 304B of IPC. The Magistrate Court allowed Annexure VIII application and directed further investigation. In the further investigation pursuant to the said order, the investigation agency found that the offence under Section 304B was not attracted and filed Annexure X final report stating that the petitioner committed offences punishable under Sections 294(b), 323, r/w 498A of IPC. Still, the Magistrate ordered further investigation. Again, the investigating agency found that the offence under Section 304B was not involved and filed the final report stating that the petitioner had committed offences punishable under Sections294(b), 323 and 498A of IPC. It was thereafter the Magistrate Court passed the impugned order adding Section 304B of IPC after arriving at a finding that a prima facie case was made out against the petitioner under Section 304B of IPC. 8. The Magistrate has the following options on receipt of the final report from the investigating officer. (i) He may accept the final report and drop the proceedings. (ii) He may disagree with the final report taking the view that there is sufficient material to take cognizance of the offences and issue process to the accused. (iii) He may direct further investigation to be made by the police. 9. It is true, normally the Magistrate while accepting the final report, taking cognizance and issuing process to the accused need not pass a detailed order. But this is a case where three reports were filed by the investigating agency without incorporating the offence under Section 304B of IPC, despite the specific allegation of the defacto complainant that the said offence was involved. Hence, the Magistrate Court, while adding Section 304B of IPC, was supposed to pass a speaking order with reasons. Of course, the Magistrate has every right to peruse the final report in detail and add Section 304B of IPC as well. Hence, the Magistrate Court, while adding Section 304B of IPC, was supposed to pass a speaking order with reasons. Of course, the Magistrate has every right to peruse the final report in detail and add Section 304B of IPC as well. But, the order should reflect that the Magistrate has scrutinized the entire records and applied his mind before taking a decision to add Section 304B of IPC. The impugned order is bereft of any reasons. It only says that the perusal of prosecution records shows that there is prima facie case against the petitioner under Section 304B of IPC also. The said finding is unsupported by any reason. A report filed under Section 173(8) of Cr.P.C has no separate entity apart from the final report submitted under Section 173(2) of Cr.P.C. Both these reports have to be read conjointly so as to ascertain the existence of grounds to presume that the accused has committed the offence. It cannot be read or appreciated independently, but its cumulative effect should be considered so as to determine whether there exist grounds to presume that the accused has committed the offence {See. Vinay Tyagi v. Irshad Ali @ Deepak and Others, (2013) 5 SCC 762 ]}. There is nothing on record to show that the Magistrate has appreciated all three final reports before passing the impugned order adding Section 304B of IPC. Since the impugned order is not a speaking one and unsupported by reasons, I am of the view that it cannot be sustained. Accordingly, it is set aside. The Magistrate Court is directed to reconsider Annexure XIV application in the light of the observations made in this order and dispose of the same in accordance with the law after hearing both sides by passing a reasoned order within two months from the date of receipt of a copy of this order. Crl. M.C and Crl. R.P. are disposed of as above.