Biju s/o. Jose v. State of Kerala and Shyni Sadanandan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **Crl.MC.No.2721 OF 2016** **CC 883/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA CRIME NO.975/2012 OF Aroor Police Station , Alappuzha** ## **PETITIONER/ACCUSED:** **BIJU S/O.JOSE, AGED 36 YEARS KAITHAKULATH PUTHENPURAYIL VILLAGE, UZHAVOOR PANCHAYATH, MONIPPILLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN: 686 636.** **BY ADVS. SMT.GISA SUSAN THOMAS SMT.G.ASHWINI** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031. 2 STATION HOUSE OFFICER AROOR POLICE STATION, ALAPPUZHA DISTRICT 683 579. 3 SHYNI SADANANDAN AGED 35 YEARS, D/O.SADANANDAN, PENGALUTHARA VEETTIL, AROOR P.O., AROOR PANCHAYATH, WARD NO.6, CHERTHALA.** **BY ADVS. SRI.B.JAYASURYA, PUBLIC PROSECUTOR SRI.B.PRAMOD-R3** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No. 2721 of 2016 2 ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No. 2721 of 2016 -----------------------------------Dated this the 23[rd] day of September, 2020 ## **O R D E R** The prayer in the above Crl.M.C filed under Sec.482 of the Cr.PC is as follows. _“..........to quash Anx.A-II FIR and Anx.A-III Final Report in C.C. No.883/2015 pending before the Judicial First Class Magistrate Court-II, Cherthala and allow this Crl.M.C, in the interest of justice.”_ 2. Heard Smt.Gisa Susan Thomas, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 & R2 and Sri.B.Pramod, learned Advocate appearing for contesting respondent No.3 (Lady Defacto complainant). 3. The petitioner herein has been arrayed as a sole accused in the impugned Anx.A-II FIR in crime No.975/2012 of Aroor Police Station, for offences punishable under Secs.498A, 323, 506(i) read with Sec.34 of the IPC and Secs.3(1)(x), 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. The abovesaid crime has been registered pursuant to Anx.A-I private 3 Crl.M.C. No. 2721 of 2016 criminal complaint dated 22-10-2012 filed by the 3[rd] respondent Defacto complainant, in which the learned Magistrate had issued directions as per Sec.156(3) of the Cr.PC that the Police should register the crime and investigate the same in accordance with the provisions contained in Code of Criminal Procedure. The Police after investigation, has filed the impugned Anx.A-III Final report/charge sheet dated 05-11-2013, (which has now led to the pendency of Calendar Case C.C No.883/2015, on the file of the Judicial First Class Magistrate Court-II, Cherthala) in which the only offence alleged against the petitioner/sole accused is the one punishable under Sec.498A of the IPC and all other offences mentioned in Anx.A-II FIR has been deleted therefrom. 4. The gist of the prosecution case is that the petitioner/accused had relationship with the 3[rd] respondent (lady defacto complainant) and later their marriage was solemnised in a Hindu temple at Edakochi, which is under the Sreekrishna Darmaparipalana Yogam Devaswam and that 15 sovereigns of gold ornaments belonging to the 3[rd] respondent was taken by the petitioner on the excuse that he needs it temporarily for discharging a loan liability and that later he has not returned back the said gold Crl.M.C. No. 2721 of 2016 4 ornaments and has misappropriated the same and he used to frequently harass her with mental and physical cruelty by alleging that the 3[rd] respondent lacks beauty, etc, and certain other incidents are also alleged in Anx.A-I private criminal complaint. 5. The petitioner would place reliance on Anx.A-IV judgment dated 28-09-2012 rendered by the Division Bench of this Court in writ of Habeas Corpus proceedings as W.P(Crl) No.473/2012, in which it has been found by the Division Bench that no valid marriage has been solemnised between the petitioner and the 3[rd] respondent etc. Hence the petitioner would contend that, as the sole allegation now alleged against the petitioner as per the impugned Anx.A-III Final report/charge sheet as well as Calendar Case, C.C No.883/2015 on the file of the Judicial First Class Magistrate Court -II, Cherthala, is the one punishable as per Sec.498A of the IPC, the entire substratum of prosecution case has collapsed as indisputably, there is no valid marriage between the petitioner and the lady defacto complainant. 6. Submissions on both sides have been heard in detail. Anx.AIV is a judgment dated 28-09-2012 rendered by the Division Bench of this Court in Habeas Corpus proceedings viz, W.P(Crl) No.473/2012, 5 Crl.M.C. No. 2721 of 2016 which has been initiated at the behest of the petitioner's mother on the ground that contesting respondents 1 to 3 therein (brothers of the 3[rd] respondent herein), had illegally confined the petitioner in their custody against his wishes, though he has not legally solemnised the marriage with the 3[rd] respondent etc. The Division Bench of this Court as per Anx.A-IV judgment dated 28-09-2012 in the said Habeas Corpus writ proceedings has noted the contentions of the contesting respondents therein, 3[rd] respondent herein as well as the petitioner herein, both of whom had also appeared before this Court in person. This Court found that the case of the 3[rd] respondent herein is that she had got married to the petitioner herein at Sreekrishana Temple at Edakochi on 13-08-2012 and they have placed reliance on marriage certificate dated 13-08-2012 said to have been issued by the said temple authorities [marked as Ext.P1 in Anx.A-IV W.P(Crl)]. 7. The Division Bench of this Court has held in Anx.A-IV judgment that the so called marriage said to have been solemnised between the petitioner herein and the 3[rd] respondent cannot be seen and as certified under Ext.P1 therein cannot be said to be a lawfully solemnised marriage as the petitioner herein admittedly belongs to Christian religion and the 3[rd] respondent herein belongs to Hindu Crl.M.C. No. 2721 of 2016 6 religion and the admitted case of the 3[rd] respondent herein was to the effect that marriage between them has been solemnised in a Hindu temple. Since the mandatory provisions of the Hindu Marriage Act stipulate that a lawful marriage can be solemnised under the Hindu Marriage Act only between two Hindus, it is goes without saying that the so-called marriage between the petitioner herein and the 3[rd] respondent was found by this Court not to be a lawfully solemnised marriage. Further the Division Bench of this Court has also found as per Anx.A-IV judgment after interacting with the parties concerned that the petitioner herein, who was produced in the said Habeas Corpus writ proceedings is not a free person and that he has apprised this Court that he was trapped by contesting respondents 1 to 3 therein (brothers of R3 herein) to enter into marriage, which is certified as per Ext.P1 therein and that he is not a free person and that he is being harassed and coerced by the 3[rd] respondent herein who claims to be his wife, on the strength of Ext.P1 therein, etc. The Division Bench of this Court has thus found that their Lordships are convinced that there is a pressure and compulsion on the petitioner herein from the part of the contesting respondents 1 to 3 therein as well as R3 herein and hence this Court issued a writ in 7 Crl.M.C. No. 2721 of 2016 Anx.A-IV judgment directing that the petitioner herein may accompany his mother (petitioner therein) and to stay with her in her house till such time, as he desires and official respondents 4 & 5 therein (police authorities) are directed therein to ensure that there is no intervention to the residence of the petitioner herein along with his mother in her house from the part of contesting respondents 1 to 3 therein or R3 herein. 8. A reading of Anx.A-I private criminal complaint as well as the impugned criminal proceedings would make it clear that the specific case of the 3[rd] respondent herein is that the marriage between her and the petitioner herein has been solemnised on 18-02-2012 at the Sreekrishna Temple at Edakochi, which is affiliated to the Sreekrishan Darmaparipalana Yogam Devaswam. Indisputably, the petitioner herein belongs to Christian religion and the 3[rd] respondent herein belongs to Hindu religion. Therefore as already found by the Division Bench, since both the parties are not Hindus and as the marriage is said to have been solemnised in a Hindu temple there is no question of any valid marriage subsisting between the parties. It is by now well settled by series of rulings of the Apex Court and various High courts including this Court in cases as in _**Shivcharan**_ Crl.M.C. No. 2721 of 2016 8 _**Lal Verma and another v. State of Madhya Pradesh [JT 2002 (2) SC 641], Suprabha v. State of Kerala [2013 (3)**_ _**KLT 514],**_ in order to attract an offence under Sec.498A of the IPC, the subsistence of a valid marriage is required. In _**Shivcharan Lal Verma's case**_ (supra) the Apex Court has held that since the marriage in question is null and void, on account of the subsistence of another valid marriage etc. 9. In the instant case going by the admitted allegations in the impugned criminal proceedings and as also in view of the findings made by the Division Bench of this Court in Anx.A-IV judgment, there cannot be any dispute that no valid marriage has been solemnised between the petitioner and the 3[rd] respondent. Hence the entire factual foundation for disclosing the offence as per Sec.498A of the IPC will crumble to the ground. Therefore, the initiation and continuation of the impugned criminal proceedings that the offence as per Sec.498A of the IPC is illegal and ultra vires and would amount to an abuse of the process of the Court. So interdiction of the impugned criminal proceedings by resort to the inherent powers rendered on this Court as per Sec.482 of the Cr.PC could be befittingly considered in the facts and circumstances of the case. Crl.M.C. No. 2721 of 2016 9 10. In that view of the matter it is ordered that the impugned Anx.A-III Final report/Charge sheet filed in Anx.A-II crime No.975/2012 of Aroor Police Station, which has led to the pendency of Calendar Case C.C No.883/2015, on the file of the Judicial First Class Magistrate Court-II, Cherthala as against the petitioner herein and all consequential proceedings emanating therefrom as against the petitioner herein will stand quashed and set aside. 11. The petitioner will produce certified copies of this order before the Judicial First Class Magistrate Court-II, Cherthala as well as the Investigating Officer concerned for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C. No. 2721 of 2016 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE AI COPY OT THE PRIVATE COMPLAINT FILED BY THE DE-FACTO COMPLAINANT/ RESPONDENT NO.3 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT II, CHERTHALA ANNEXURE AII THE COPY OF THE FIR NO.975/2012 OF AROOR POLICE STATION ANNEXURE AIII COPY OF THE FINAL REPORT IN C.C NO.883/2015 PENDING BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT II, CHERTHALA. ANNEXURE A-IV THE COPY OF THE JUDGEMENT IN W.P. (CRL)NO.473/2012 DATED 28/09/2012 BEFORE THE HON'BLE HIGH COURT** **RESPONDENT'S/S EXHIBITS: NIL**