## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
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MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945
CRL.MC NO. 1509 OF 2016
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## **`CC 2688/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,`**
## **`NEYYATTINKARA`**
## **`CRIME NO.439/2014 OF KOVALAM POLICE STATION`**
## **`PETITIONER/ACCUSED:`**
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PETER SUNDER DHAS
AGED 38 YEARS
S/O.DHAS, JALAJA BHAVAN, KUZHIYAMVILA, KOVALAM PO,
THIRUVANANTHAPURAM.
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BY ADV SRI.SUMAN CHAKRAVARTHY
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## **`RESPONDENTS/STATE AND DEFACTO COMPLAINANT:`**
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1STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA 682 031.
2ANN GODELIEVE SAELENS
D/O.GUIDO SAELENS, BURGEMEESTER, VERCRYSE;AAM10,
KORTRIJK 8500, BELGIUM.
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BY ADV
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ADV SEETHA S. -SR PUBLIC PROSECUTOR
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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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CRL.MC NO. 1509 OF 2016
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## **`2`**
## **`ORDER`**
The petitioner is the accused in Crime No.439/2014 of Kovalam Police Station, which was registered based on a complaint submitted by the 2nd respondent, a citizen of Belgium, through email. The offences alleged against the petitioner are under Sections 494 and 420 of IPC. Annexure A is the email sent by the 2nd respondent based on which the crime was registered, and after completing the investigation, Annexure B final report was submitted. Even though notice was sent to the 2nd respondent on various occasions, as of now, service of notice could not be affected in her address in Belgium.
2. The allegations against the petitioner as per Annexure B final report are twofold. Firstly, it was alleged that the petitioner married the 2nd respondent as per Special Marriage Act at Thiravallom Sub Registrar office on 06.05.2005 and thereafter, they were living together as husband and wife. Subsequently, the 2nd respondent left for Belgium, and thereafter, the petitioner married another lady named Sumina while the marriage between the 2nd
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respondent/defacto complainant was subsisting. The 2nd allegation is that, the petitioner collected certain amounts from the defacto complainant in connection with business activities and thereafter cheated her by misappropriating the same. The final report was submitted based on the said allegations, which is produced as Annexure B and cognizance thereon was taken by the Judicial First Class Magistrate Court III, Neyyattinkara. Now, the matter is pending as C.C. No.2688/2014. This Crl.M.C. is filed to quash Annexure B final report submitted and all further proceedings pursuant to the same.
3. Heard Sri.Suman Chakravarthy, learned counsel appearing for the petitioner and Smt.Seetha S., learned Public Prosecutor for the State.
4. As mentioned above, despite several attempts, no notice of this application could be served upon the 2nd respondent in the address of the 2nd respondent in Belgium. The matter has been pending since 2016, and the learned Public Prosecutor also submitted that the investigation officer also could not contact the defacto
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complainant after the crime was registered as her present whereabouts is not known. Her statement also could not be recorded. In such circumstances, considering the long pendency of this matter and also the fact that the 2nd respondent could not be contacted even by the investigation officer, I deem it appropriate to proceed with the hearing of this Crl.M.C., even in the absence of the 2nd respondent. In this regard, it is also pointed out by the learned counsel for the petitioner that, before the Family Court, Thiruvananthapuram also, where the proceeding of dissolution of the marriage between the petitioner and the 2nd respondent was pending, there was no appearance on behalf of the 2nd respondent. Ultimately it resulted in a judgment being pronounced ex parte on 29.01.2016 in O.P. No.1005/2015. Another crucial aspect which prompts this Court to decide this application, in the absence of the 2nd respondent is that one of the crucial contention raised by the learned counsel for the petitioner is with regard to the inherent defect in taking cognizance in respect of the offence under Section 494 of IPC, in the light of the specific prohibition contained under Section 198 of Cr.P.C.
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5. In this regard, the learned counsel for the petitioner points out that, by virtue of the prohibition contained under Section 198 of Cr.P.C., no court could have taken cognizance for the offence under Section 494 of IPC except upon a complaint submitted by the person aggrieved by the offence. In this case, the cognizance of the offence under Section 494 of IPC has been taken based on the final report, which is against the statutory stipulations and, therefore, liable to be interfered with. Reliance was also placed on the decision rendered by this Court in **Sali Antony and Another v. State of Kerala and Another** [2020 KHC 5595 :2020 (6) KLT SN 31]. It was also contended that the offence under Section 494 would not be attracted because there are no materials indicating a marriage performed between the petitioner and the said Sumina. In the absence of the existence of a marriage in any acceptable or recognized forms, the offence under section 494 of the IPC would not be attracted. With regard to the offence under Section 420 of IPC, it was pointed out that the allegation with respect to the same is very vague as no details of the amount allegedly misappropriated, the mode in which the
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transactions were made, the date of transactions, etc. are conspicuously absent in both the complaint and in the final report. Besides the same, it is also pointed out that there is a specific statement in the final report to the effect that, in the investigation, no materials could be collected by the investigation officer indicating the cheating allegedly committed by the petitioner. Therefore, the offence under Section 420 is not attracted as well.
6. The learned Public Prosecutor would place reliance upon the contents of the statement submitted before this Court by pointing out that, as per the investigation, it was revealed that, while the marriage with the 2nd respondent was subsisting, the petitioner was living together with another lady and therefore, the offences are attracted. The dismissal of this Crl.M.C. was sought in such circumstances.
7. As mentioned above, the first contention is with respect to the manner in which cognizance was taken by the learned Magistrate in respect of the offence under Section 494 of IPC. The prohibition contained under Section 198 of Cr.P.C. is very clear. As
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per the said provision, no offences under Chapter XX of the IPC can be taken cognizance except upon a complaint made by some person aggrieved by the offence. In this case, admittedly, the cognizance was taken based on a final report submitted by the Police. The aforesaid legal position has been clearly clarified by this Court in **Sali Antony’s** case, wherein it was categorically observed that, in the light of the statutory prohibition under Section 198 of Cr.P.C., Magistrate is not competent to take cognizance of the offence based on final report/charge sheet submitted by the Police under Section 173 of Cr.P.C. Therefore, the contention raised by the learned counsel for the petitioner in this regard is only to be accepted, and I do so. Since I have already found that the cognizance taken by the learned Magistrate under Section 494 is not legally sustainable, I do not intend to consider the second contention as to whether the offence under Section 494 is attracted or not. This is particularly because the said contention being the one on merits, as regards the applicability of the aforesaid offences, it may not be proper on the part of this Court to take a view to adjudicate upon the same in the absence of the
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2nd respondent in the party array.
8. Now, when coming to the question of the offence under Section 420, from the contents of the final report, it is mentioned that the investigation officer could not collect any materials for attracting the said offence. Even though while mentioning the offences for which the final report is submitted, Section 420 is incorporated, cognizance could not have been taken for the said offence in the absence of any materials. In this case, the prosecution cannot content that there are materials for attracting the offence under section 420 of the IPC, as there is a specific finding in the final report itself that there are no materials for the same. Therefore, cognizance taken by the learned Magistrate for the offence under Section 420 was not at all proper and without any application of mind. The fact that neither Annexure A complaint nor the contents of the final report contain any details as to the nature of transactions and the details of the same such as date, mode, time etc., fortifies the aforesaid contention of the petitioner. In such circumstances, I am of the view that there is no purpose in allowing the continuation of the proceedings based on
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Annexure B. Thus, after considering all the relevant aspects, including the contents of Annexure B final report, I am of the view that the proceedings based on the same are clear abuse of process of law and therefore, liable to be interfered with, by invoking the powers of this Court under Section 482 of Cr.P.C.
In such circumstances, this Crl.M.C. is allowed, and Annexure B Final Report submitted in Crime No.439/2014 of Kovalam Police Station and all proceedings pursuant to the same, including the proceedings in C.C. No.2688/2014 on the files Judicial First Class Magistrate Court III, Neyyattinkara are hereby quashed. However, it is clarified that this order shall not preclude the 2nd respondent from pursuing her remedies available under the law against the petitioner.
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Sd/-
ZIYAD RAHMAN A.A.
JUDGE
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scs
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## **`APPENDIX OF CRL.MC 1509/2016`**
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PETITIONER ANNEXURES
ANNEXURE ATRUE COPY OF EMAIL COMMUNICATION DATED
28.3.2014
ANNEXURE BCERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.439/14 OF KOVALAM POLICE
STATION THIRUVANANTHAPURAM
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