Madhu Chacko v. Deepa and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 Crl.MC.No. 5093 of 2010() ------------------------CC.360/2010 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... PETITIONER(S): --------------- MADHU CHACKO, AGED 32 YEARS, S/O.CHACKO, KAKKADASHERY HOUSE, UNNUKAL BHAGOM, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.M.REVIKRISHNAN SRI.UNNI SEBASTIAN KAPPEN RESPONDENT(S): DEFACTO COMPLAINANT AND STATE -------------------------------------------- 1. DEEPA, AGED 29 YEARS, D/O. MOHANAN, KUNNUMPURATHU HOUSE, E.M.S.NAGAR,VAZHAPPILLI KARA, VELLURKUNNAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.GEORGE MATHEW FOR R1 R2 BY PUBLIC PROSECUTOR SRI.MOHAMMED ANZARI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## M.SASIDHARAN NAMBIAR,J. --------------------------------------------- `Crl.M.C.NO.5093 OF 2010` --------------------------------------------- `Dated 10[th] January, 2011` ## O R D E R Petitioner is the accused and first respondent, the de facto complainant in C.C.360/2010 on the file of Judicial First Class Magistrate's Court, Muvattupuzha, taken cognizance for the offences under Sections 493, 496, 417 and 420 of Indian Penal Code on Annexure-A final report. Prosecution case is that petitioner and first respondent were students of M.A.College, Kothamangalam. While so, they were in love. Petitioner promised first respondent that he will marry her. Inducing her to be believe that he will marry her from the year 1998 onwards petitioner had taken her to various places and had sexual intercourse with her. Petitioner induced first Crmc 5093/10 2 respondent to believe that he will marry her as per the provisions of Special Marriage Act. With the intention to cheat her, on 11/2/2008, petitioner took first respondent to Sub Registrar Office, Muvattupuzha and submitted an application to register their marriage and took her to St.George Cathedral, Karingachira and he put a ring on her finger. On 12/2/2008 he took her to Kaloor St.Antony's Church and made her believe that he married her and would never discard her and tied the chain on her neck. Thereafter he took her to House No.XXVII/556 of Cochin Corporation and thereafter took her to Dubai and resided together and had sexual relationship and also obtained Rs.1,58,350/- from her with the intention to cheat. On 25/5/2009 he discarded her and thereby committed the offences under Crmc 5093/10 3 Sections 493, 496, 417 and 420 of Indian Penal Code. Petition is filed under Section 482 of Code of Criminal Procedure, to quash the proceedings before the learned Magistrate contending that entire disputes were settled amicably with the first respondent and consequent to the settlement, it is not in the interest of justice to continue the prosecution. It is also contended that cognizance of the offences under Sections 493 and 496 of Indian Penal Code could not have been taken in violation of the provisions of Section 198(1) of Code of Criminal Procedure and an offence under Section 493 of Indian Penal Code is attracted only if petitioner by deceit caused second respondent who is not lawfully married to him and to believe that she is lawfully married to him and subjected Crmc 5093/10 4 her to have sexual intercourse with him. It is also contended that statement of the first respondent before the investigating officer establishes that the petitioner had no sexual intercourse with her and in such circumstances, even if the petitioner is to be tried, there is no likelihood of a successful prosecution. It is further contended that the offences under Sections 417 and 420 of Indian Penal Code are compoundable and when the disputes are settled amicably, as held by the Apex Court in **Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19 (SC)** and **Manoj Sharma v. State (2008 (4) KLT 417 (SC)** ), it is not in the interest of justice to continue the prosecution. 2. First respondent appeared through a counsel and filed an affidavit stating that Crmc 5093/10 5 though offences under Sections 417 and 420 of Indian Penal Code are compoundable and though offences under Sections 493 and 496 of Indian Penal Code are not compoundable, the disputes were settled. It was sworn to by the first respondent that they were college mates and friends and due to certain misunderstandings, the case arose and now at the intervention of mediators and well wishers and relatives of both parties, all the disputes were amicably settled and in such circumstances, she has no objection for quashing the proceedings. 3. Learned Senior counsel appearing for the petitioner, first respondent and learned Public Prosecutor were heard. 4. Learned Senior counsel appearing for the petitioner pointed out that to take cognizance of the offence under Sections 493 Crmc 5093/10 6 and 496 of Indian Penal Code, mandatory provisions of Section 198(1) of Code of Criminal Procedure has to be complied with and the learned Magistrate should not have taken cognizance of those offences on Annexure-A complaint. It is argued that offences under Sections 417 and 420 of Indian Penal Code are compoundable and the affidavit filed by the first respondent establishes that she has settled all the disputes with the petitioner and when the statement of the first respondent recorded under Section 161 of Code of Criminal Procedure conclusively establish that petitioner had no sexual intercourse with the first respondent, it is not in the interest of justice to continue the prosecution, especially when, even if petitioner is to be tried, there is no likelihood of a successful Crmc 5093/10 7 prosecution. 5. Copy of the statement of the first respondent recorded under Section 161 of Code of Criminal Procedure by the investigating officer shows that she asserted before the investigating officer that she had no sexual intercourse with the petitioner. That statement was recorded much before the amicable settlement with the parties and at a time when first respondent was intending to prosecute the petitioner. As rightly argued by the learned Senior counsel if there was no sexual intercourse with the first respondent as asserted by her, petitioner cannot be successfully prosecuted for the offence under Section 493 of Indian Penal Code. Sections 493 and 496 of Indian Penal Code are punishable under Chapter XX of Code of Criminal Crmc 5093/10 8 Procedure. Section 198(1) of Code of Criminal Procedure expressly provides that no Court shall take cognizance of an offence punishable under Chapter XX of Indian Penal Code, except upon a complaint made by some person aggrieved by the offence. Learned Magistrate has taken cognizance of the offences under Sections 493 and 496 of Indian Penal Code on Annexure-A final report and not on a complaint filed by the aggrieved person. When the cognizance was taken in violation of the mandatory provisions of Section 198(1) of Code of Criminal Procedure there cannot be a successful prosecution for those offences. More over, the affidavit of the first respondent establishes that petitioner had no sexual intercourse with her. If so, an offence under Section 493 of Indian Penal Code Crmc 5093/10 9 is not attracted at all. When the affidavit shows that she has settled all the disputes with the petitioner, question is whether it is in the interest of justice to continue the prosecution, when there is no likelihood of a successful prosecution. As held by the Apex Court in **Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19 (SC)** and **Manoj Sharma v. State (2008 (4) KLT 417 (SC)** ), when it is shown that first respondent, the victim, as well as the father of the victim, as submitted by the learned Public Prosecutor, reported before the investigating officer that they have settled all the disputes with the petitioner and when learned Senior counsel appearing for the petitioner and learned counsel appearing for first respondent submit that marriage of the petitioner and first Crmc 5093/10 **==> picture [13 x 9] intentionally omitted <==** respondent were separately fixed, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.C.360/2010 on the file of Judicial First Class Magistrate's Court, Muvattupuzha is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.