SALI ANTONY and ARATHY S. NAIR v. STATE OF KERALA and TEENA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **O.P.(Crl)No.470 OF 2019** **AGAINST THE ORDER IN CMP NO.794/2019 IN CC 412/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOCHI** ## **PETITIONERS:** |**1**|**SALI ANTONY,**| |---|---| ||**AGED 38 YEARS, S/O.DEVASSYKUTTY,**| ||**THAIPATTU HOUSE, KANNAMALI P.O., KOCHI - 682 008.**| |**2**|**ARATHY S.NAIR,**| ||**D/O.V.SASIDHARAN, VELLOLIL HOUSE,**| ||**WEST KORATTY, MAMBRA, THRISSUR DISTRICT.**| ||**BY ADV. SMT.R.SUDHA**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031.**| |**2**|**TEENA,**| ||**W/O.BINOY GEORGE,**| ||**MULANJANANY HOUSE, VENGALOOR KARA,**| ||**MANAKKAD VILLAGE, VAZHITHALA P.O.,**| ||**THODUPUZHA, IDUKKI DISTRICT - 685 584.**| **R1 BY GOVERNMENT PLEADER R2 BY ADV. SRI.R.MANOJ R2 BY ADV. SMT.P.SHEENA RAJAN R2 BY ADV. SMT.T.V.SREELAKSHMI** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(Crl)No.470 OF 2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- ## O.P.(Crl)No.470 of 2019 ---------------------------------------------Dated this the 09[th] day of October, 2020 ## **JUDGMENT** The prayers in the aforecaptioned Original Petition (criminal), filed under Article 227 of the Constitution of India, are as follows:- - _“1. To set aside the order passed by the JFCM-I, Kochi in CMP No.794/2019 in CC No.412/2016._ _2. To discharge the petitioners from CC 412/2016 pending before the JFCM Kochi 1 on the basis of the Exhibit P4 report submitted by the police._ _3. To allow such other reliefs as this Hon'ble Court may deem fit and proper in the interest of justice.”_ 2. This matter is in relation to the Calendar Case, C.C. No.412/2016 on the file of Judicial First Class Magistrate Court-I, Kochi, which in turn has arisen out of protest complaint said to have been filed by the 2[nd] respondent-lady _de facto_ complainant in respect of Ext.P-4 refer report dated 18.12.2015, submitted in Crime No.912/2015 of Kannamaly Police Station. 3. The facts in this case are also intimately related to another case viz., Calendar Case, C.C. No.2079/2015 on the file of O.P.(Crl)No.470 OF 2019 3 the same Magistrate Court. 4. The Judicial First Class Magistrate Court-I, Kochi, has filed a report dated 05.10.2020 before the Registry of this Court in compliance with the directions issued by this Court as per order dated 28.09.2020 giving the essential details of both C.C. No.2079/2015 and the instant C.C. No.412/2016. **C.C. No.2079/2015** on the file of the Judicial First Class Magistrate Court-I, Kochi, has arisen out of Final Report dated 14.12.2015, filed by the Police in Crime No.783/2015 of Kannamaly Police Station, in which the 1[st] petitioner herein was arrayed as the sole accused therein for the alleged offences under Section 498 A and 494 of the I.P.C. Therein, the prosecution has cited charge witnesses, Cws 1 to 11 in support of the abovesaid Final Report/Charge Sheet. Pursuant to the filing of the said Final Report/Charge Sheet, the learned Magistrate has taken cognizance of the abovesaid offences and taken the case on file as the abovesaid C.C. No.2079/2015 on 29.12.2015. The allegations in the abovesaid case are to the effect that earlier the 1[st] petitioner herein had married the 2[nd] respondent herein (lady _de facto_ complainant) and that the 1[st] petitioner herein has consistently involved in conducts amounting to great mental and physical O.P.(Crl)No.470 OF 2019 4 cruelty and that various other allegations are also made therein and it is also alleged that during the subsistence of the valid marriage between the 1[st] petitioner herein and the 2[nd] respondent herein, the 1[st] petitioner had contracted another marriage with the 2[nd] petitioner herein and that therefore, the 1[st] petitioner herein had committed offences, not only under Section 498A of the I.P.C., but also Section 494 of the I.P.C. Later, the 1[st] petitioner has filed Criminal M.C. No.306/2018 before this Court stating that the entire disputes between the 1[st] petitioner and the 2[nd] respondent herein have been settled on account of the mediatory efforts taken by the well wishers and friends and that arrangements have been made to ensure that compensation is also duly paid to the 2[nd] respondent herein, etc. This Court, as per final order dated 01.02.2018, had disposed of Crl.M.C. No.306/2018 by quashing the impugned criminal proceedings in C.C. No.2079/2015 on account of the settlement between the 1[st] petitioner herein and the 2[nd] respondent herein, and after hearing both sides. Thereafter, the 2[nd] respondent herein has filed Crl.M.A.No.3/2018 in the said disposed Crl.M.C. No.306/2018, seeking for recall of the abovesaid final order dated 01.02.2018, as the 1[st] petitioner herein has totally breached the agreement O.P.(Crl)No.470 OF 2019 5 arrived at between him and the 2[nd] respondent herein for payment of the compensation amounts and that therefore, the 1[st] petitioner herein had committed fraud on the 2[nd] respondent herein for having induced her to settle the case and that the full amount of the compensation has not been paid to her, etc. This Court, after hearing both sides, had passed order dated 12.03.2019 on Crl.M.A. No.3/2018 in Crl.M.C. No.306/2018, whereby the abovesaid final order dated 01.02.2018, passed earlier by this Court in said Crl.M.C. No.306/2018, quashing the impugned criminal proceedings in C.C. No.2079/2015 on the ground of settlement, was recalled and the case was ordered to be revived and restored before the file of the learned Magistrate. The abovesaid decision rendered by this Court on 12.03.2019 on Crl.M.A. No.3/2018 in Crl.M.C. No.306/2018 has been reported as a case in _**Teena Philip v. State of Kerala and Another**_ [2019 (3) KHC 114 = 2019 (2) KLT 903 = ILR 2019 (2) Ker. 732]. Thus, C.C. No.2079/2020 stood revived and restored to the file of the learned Magistrate. Thereafter, the 1[st] petitioner (accused therein) had appeared before the learned Magistrate on 05.05.2016, on which day he was granted bail and later he was served on the question of framing of charges. At that stage it was O.P.(Crl)No.470 OF 2019 6 noticed by the learned Magistrate that cognizance in respect of the offence as per Section 494 of the I.P.C. in the said case was taken wrongly and in derogation of the statutory bar contained in Section 198 of the Cr.P.C. which mandates that cognizance of offences contained in Chapter XX of the I.P.C. (viz., offences as per Sections 493 to 498 of the I.P.C.) can be taken cognizance only on the basis of a complaint in writing of the aggrieved person as it is an offence arising out of a marriage. In the instant case, cognizance was taken by the Magistrate, even for the offence as per Section 494 of the I.P.C. (Section 494 of the I.P.C. marrying again during the life time of 1[st] husband or wife), in C.C. No.2079/2015, on the basis of a Final Report/Charge Sheet/Police Report filed by the Police investigating agency. Hence, the learned Magistrate found that the earlier action in taking cognizance of the offences as per Section 494 of the I.P.C. is illegal and accordingly, on the application for discharge filed by the 1[st] petitioner herein (sole accused therein),s the learned Magistrate had discharged the 1[st] petitioner herein for the offences as per Section 494 of the I.P.C. in the said C.C. No.2079/2015. In other words, as of now, the only surviving offence alleged in C.C. No.2079/2015 is the one as per Section 498 of the I.P.C., for O.P.(Crl)No.470 OF 2019 7 which, charges have also been framed by the learned Magistrate. It is reported by the learned Magistrate that the charge for the offences as per Section 498 A of the I.P.C. was framed by the said Court after hearing the 1[st] petitioner and the 1[st] petitioner had pleaded not guilty and prayed that he should be tried. Thereupon the learned Magistrate has issued summons for the appearance of the prosecution witnesses. Further it is reported that as of now charge witnesses Cws 1 to 3 stand examined as Pws 1 to 3 respectively and Exhibit P-1 (First Information Statement) and D1 (confronted portion of Section 161 Cr.P.C. statement of CW2), are also got marked and that the case is now posted to 03.11.2020, awaiting return of the summons of charge witnesses CWs 4 to 8. Thus, it can be seen that though earlier the learned Magistrate had taken cognizance in respect of both the aspects as per Sections 498A and 494 of the I.P.C. in C.C. No.2079/2015 and later on account of the above said statutory bar in Section 198 of the Cr.P.C., the court has discharged the 1[st] petitioner (sole accused therein) for the aforesaid offences as per Section 494 of the I.P.C. So, the sole surviving offence now, in C.C. No.2079/2015, which is awaiting trial, is the one as per Section 498 A of the I.P.C. O.P.(Crl)No.470 OF 2019 8 5. As regards the instant calendar case, C.C. No.412/2016 the following aspects would be relevant. In this case, the 2[nd] respondent herein (lady _de facto_ complainant) had filed a private criminal complaint as Crl.M.P. No.2888/2015 as against both the petitioners herein wherein, they have been arrayed as accused 1 & 2 respectively among the two accused therein and the allegations are to the effect that they had committed offences as per Section 494 read with Section 120B of the I.P.C. The allegation is to the effect that during valid subsistence of the marriage between the 1[st] petitioner and the 2[nd] respondent, the 1[st] petitioner had contracted another marriage with the 2[nd] petitioner and that they have conspired with concerted action to commit the abovesaid offence as per Section 494 of the I.P.C., etc. On filing of the said private criminal complaint the learned Magistrate had issued directions under Section 156 (3) of the Cr.P.C. directing the Police to register crime and to conduct investigation and accordingly Crime No.912/2015 of Kannamaly Police Station was registered for the abovesaid offences. After completion of the investigation, the Police has filed Ext.P-4 refer report dated 18.12.2015 in respect of the matter in the said Crime No.912/2015 of Kannamaly Police Station. The main ground stated by the investigating agency in O.P.(Crl)No.470 OF 2019 9 Ext.P-4 refer report is that already C.C. No.2079/2015 is pending in which the 1[st] petitioner herein is facing charges in respect of both Section 498A and Section 494 of the I.P.C. and that therefore the present proceedings for the offence as per Section 494 of the I.P.C. in respect of the very same set of factual allegations is not proper etc., and has accordingly stated that further action need to be dropped and the refer report is thus filed. Being aggrieved thereby, it appears that the 2[nd] respondent (lady _de facto_ complainant) has filed protest complaint alleging that the petitioners herein have committed the offence as per Section 494 of the I.P.C., etc. The learned Magistrate has taken cognizance on the said protest complaint filed by the 2[nd] respondent and the case is now numbered as Calendar Case C.C. No.412/2016. The petitioners have filed discharge application as per Crl.M.P. No.794/2015, seeking discharge in respect of their alleged involvement for the abovesaid offences in C.C. No.412/2016. The learned Magistrate has dismissed the said application for discharge filed by the petitioners as per the impugned Ext.P-5 order dated 25.09.2019 rendered on Crl.M.P. No.794/2019 in C.C. No.412/2016, stating that the factual ingredients of the offence as per Section 494 of the I.P.C. are disclosed in the said case. It is O.P.(Crl)No.470 OF 2019 10 this order at Ext.P-5 dated 25.09.2019 on Crl.M.A. No.794/2019 in C.C. No.412/2016, passed by the learned Magistrate, that is under challenge in this original petition (criminal). 6. There cannot be any dispute that it is beyond pale of any factual controversy that as of now the sole surviving offence disclosed in C.C. No.2079/2015 is the one as per Section 498 A of the I.P.C. and the 1[st] petitioner (sole accused therein) has been discharged of the offence as per Section 494 of the I.P.C., in view of the statutory bar contained in Section 198 of the I.P.C. It is also beyond any dispute that the main offence alleged in C.C. No.412/2016 is the one as per Section 494 of the I.P.C., which is included in Chapter XX of the I.P.C., apart from the offences as per Section 120B (conspiracy) and Section 34 (common intention) of the I.P.C. Section 494 (marrying again during the lifetime of husband or wife) of the I.P.C. included in Chapter XX of the I.P.C. reads as follows:- _**"494. Marrying again during lifetime of husband or wife.--** Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine._ _Exception.-This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction,_ _nor to any person who contracts a marriage during_ O.P.(Crl)No.470 OF 2019 11 _the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. "_ ## Section 198 of the Cr.P.C. reads as follows:- _"_ _**198. Prosecution for offences against marriage.--** (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:_ ## _Provided that—_ _(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;_ _(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;_ _(c) where the person aggrieved by an offence punishable under[1] [section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister[2] [, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption]._ _(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:_ O.P.(Crl)No.470 OF 2019 12 _Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf._ _(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard._ _(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband._ _(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that subsection shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence._ _(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under[1] [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence._ _(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence._ 7. It is, by now, too established and it is not required the O.P.(Crl)No.470 OF 2019 13 citation of any judicial authority as the offence as per Section 494 of the I.P.C. (marrying again during the lifetime of husband or wife), is included in Chapter XX of the I.P.C. in relation to offences relating to marriage. Section 198 (1) of the Cr.P.C. explicitly mandates that no court shall take cognizance of an offence punishable under Chapter XX of the I.P.C., except upon a complaint made by some person aggrieved by the said offence, etc. 8. Therefore, there is no question of the criminal court concerned taking cognizance of the offence as per Section 494 of the I.P.C. which has included in chapter XX of the I.P.C. except on a complaint in writing of the party concerned, who is aggrieved of such an offence relating to marriage. There is an absolute statutory bar and embargo on the part of the learned Magistrate in taking cognizance of the offence as per Section 494 of the I.P.C. on the basis of a Final Report/Charge Sheet/Police Report, filed by the Police investigating agency under Section 173 of the Cr.P.C. Therefore, the learned Magistrate has rightly discharged the 1[st] petitioner for the offence as per Section 494 of the I.P.C. in the police charge sheeted case in C.C. No.2079/2015. The sole substantive offence in C.C. No.412/2016 is the one as per Section O.P.(Crl)No.470 OF 2019 14 494 of the I.P.C., which the learned Magistrate has taken cognizance on the basis of the protest complaint submitted by the 2[nd] respondent (lady _de facto_ complainant). The learned Magistrate has given proper reasons in the impugned order as to how the factual ingredients are satisfied for the purpose of taking cognizance of the said offence as per Section 494 of the I.P.C. Hence, both the abovesaid Calendar Cases contain distinct offences. The action on the part of the learned Magistrate in having taking cognizance of the offences as per Sections 494, 120B read with Section 34 of the I.P.C. in the protest complaint filed by the 2[nd] respondent, cannot be said to be illegal or unlawful. Consequently, it cannot be said that the learned Magistrate has acted illegally and improperly in having refused the plea of the petitioners for discharging them for the offence as per Section 494 of the I.P.C. in C.C. No.412/2016. Hence, the prayers in the present petition fail as the contentions of the petitioners are not tenable. The Judicial First Class Magistrate Court-I, Kochi, may proceed further in respect of the abovesaid two cases concerned, viz., C.C. No.2079/2015 and C.C. No.412/2016, in accordance with law. All contentions of both sides available to them in law, could be raised by them before the O.P.(Crl)No.470 OF 2019 15 trial court and it is for the said court to deal with those aspects in the manner known to law. With these observations and directions, the above original petition (criminal) will stands dismissed. **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//14092020 O.P.(Crl)No.470 OF 2019 16 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DIVORCE DECREE DATED 3/2/2017 IN O.P.NO.2378/2015.** **EXHIBIT P2** **TRUE COPY OF THE NOTICE OF INTENDED MARRIAGE ISSUED TO THE 2ND RESPONDENT BY THE MARRIAGE OFFICER DATED 11/10/2017.** **EXHIBIT P3 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT DATED 27/12/2017.** **EXHIBIT P4 TRUE COPY OF THE REFER REPORT FILED BY THE POLICE DATED 18/12/2015.** **EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE JFCM KOCHI CMP NO. 794/2019.** ## **RESPONDENTS' EXHIBITS:** - **EXHIBIT R2(A) TRUE COPY OF THE CERTIFICATE ISSUED BY THE PARISH PRIEST OF ST.ANTONY'S CHURCH, KANNAMALI DATED 22.05.2011.** **EXHIBIT R2(B) TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE OFFICER OF ANNAMANADA SUB REGISTRY DATED 29.07.2013** **EXHIBIT R2(C) TRUE COPY OF THE COMPLAIN FILED BY ME BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOCHI DATED 30.11.2015**