Mohammed Ashraf @ M.M.Ashraf and Rasheeda v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939 Crl.MC.No. 2162 of 2016 () --------------------------- CRIME NO. 161/2015 OF KATTAKADA POLICE STATION , THIRUVANANDAPURAM PETITIONER(S): ------------- 1. MOHAMMED ASHRAF @ M.M.ASHRAF, S/O.MOHAMMED ABDUL KHADER MUSILI, AGED 53 YEARS, SMAK MANZIL, PEEXHUMOODU, MANNOORKKARA. 2. RASHEEDA, D/O.SUBAIDA, AGED 30 YEARS, DEEPALAYA, TC 18/427, PUNNAKKAMUGAL, THIRUVANANTHAPURAM. BY ADVS.SRI.S.RAJASEKHARAN NAIR SRI.S.KRISHNA KUMAR (MANGALAM) RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM(ON BEHALF OF THE SUB INSPECTGOR OF POLICE, KATTAKKADA POLICE STATION). 2. RUBY, D/O.FATHIMA, THAZHAVARAM VEEDU, PEEZHUMOODU, MANNOORKARA, THIRUVANANTHAPURAM. R2 BY ADV. SRI.G.RANJU MOHAN BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2162 of 2016 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE A1: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST ACCUSED TO THE SECTRETARY, JUMA-ATH, ADINAD DT. 3/9/2013. ANNEXURE A2:TRUE COPY OF THE CERTIFICATE ISSUED BY THE PUTHENPALLI MUSLIM JAMA-ATH DT. 16/10/2013. ANNEXURE A3: TRUE COPY OF THE CERTIFICATE ISSUED BY THE KAYYODIYANPARA JUMA MANSJID MAHALLU COMMITTEE DT. 28/6/2014 ANNEXURE A4: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST ACCUSED TO THE PUTHENPALLI MUSLIM JAMA-ATH DT. 9/2/2015. ANNEXURE A5: TRUE COPY OF THE FIR IN CRIME NO. 161/2015 OF THE KATTAKADA POLICE STATION RESPONDENT(S)' EXHIBITS ----------------------- /TRUE COPY/ P.S. to Judge ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl.M.C. No. 2162 of 2016** ------------------------------------------------- Dated this the 28[th] day of June, 2017 ## **ORDER** The petitioners are accused in Crime No. 161 of 2015 of Kattakkada Police Station registered for the offence under Section 494 read with Section 34 IPC. 2. The petitioners have filed this Crl.M.C. praying for quashing the FIR and further proceedings against the petitioners in the above crime. 3. Heard. 4. The 2[nd] respondent is the wife of the petitioner. 5. The prosecution allegation can be briefly stated as follows:- Crl.M.C. No. 2162 of 2016 -: 2 :- 6. The first petitioner married the 2[nd] respondent on 6-3-1998 in accordance with their customary rites. While so, on 20-7-2014, the first petitioner married the 2[nd] petitioner during the subsistence of the marriage with the 2[nd] respondent. 7 . On the said allegations, a private complaint was filed by the 2[nd] respondent before the court of the Judicial Magistrate of First Class, Kattakkada. The learned Magistrate forwarded the said complaint to the police for investigation and report under Section 156 (3) Cr.P.C. Accordingly, the above crime was registered. ## 8. Heard. 9. It is clearly stated in Section 198 (1) Cr.P.C. Crl.M.C. No. 2162 of 2016 -: 3 :- that no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. However, in this case, the learned Magistrate forwarded the complaint to the police for investigation and report under Section 156 (3) Cr.P.C. even though the court cannot take cognizance of the offence under Section 494 IPC on the basis of the final report filed by the police. Therefore, the learned Magistrate was wrong in forwarding the complaint to the police for investigation under Section 156 (3) Cr.P.C. in view of the specific bar under Section 198 (1) Cr.P.C. For the said reason alone, Annexure - A5 FIR registered on the basis of the said complaint cannot be sustained. 10. There is yet another reason to quash the proceedings against the petitioners. Admittedly, the Crl.M.C. No. 2162 of 2016 **==> picture [28 x 10] intentionally omitted <==** petitioners are Muslims. The present marriage of the first petitioner with the 2[nd] petitioner is the second marriage of the first petitioner. Section 494 IPC makes it clear that the said offence will be attracted if and only if the second marriage becomes void by reason of its taking place during the life of such husband or wife. 11. This Court in Nazar v. Jissa [2017 (3) KLT 409] held thus: “One of the most important ingredients to attract the offence under Section 494 IPC is that the second marriage should be void. So far as Muslim males are concerned, since they can have four wives, living at a time, the second marriage is not void. Since the second marriage is not void, the offence under Section 494 IPC is not attracted, even Crl.M.C. No. 2162 of 2016 **==> picture [28 x 9] intentionally omitted <==** if the Muslim male marries a second woman”. 12. Since the petitioners are Muslims, the 2[nd] marriage of the first petitioner under the Muslim Law, during the subsistence of the first marriage, is not void. For the said reason, the offence under Section 494 IPC is not attracted against the petitioner. 13. Since the offence under Section 494 IPC is not attracted, no purpose will be served by remitting the matter to the learned Magistrate for proceeding with the complaint in accordance with law. 14. The upshot of the above discussion is that the complaint and the FIR registered pursuant to the said complaint against the petitioners under Section 494 IPC Crl.M.C. No. 2162 of 2016 -: 6 :- cannot be sustained. Consequently, I am inclined to quash the complaint and the FIR against the petitioners in Crime No. 161 of 2015 of Kattakkada Police Station, in exercise of the inherent power under Section 482 Cr.P.C, to meet the ends of justice and accordingly, I order so. In the result, this Crl. M.C. Stands allowed. **Sd/-B. SUDHEENDRA KUMAR, JUDGE** . ani/