IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 5TH JULY 2007 / 14TH ASHADHA 1929 Crl.MC.No. 686 of 2005() ------------------------ CC.375/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... PETITIONER: ACCUSED 2 & 9: -------------------------- 1. PETTA, W/O. RAMAKRISHNAN, KUMBALAPPADI HOUSE, PANTHALAMPADAM, KANNAMBRA, ALATHUR, PALAKKAD. 2. RAMAKRISHNAN, S/O. MAYANDI, VADAKKUMURI HOUSE, VANDAZHI, ALATHUR TALUK. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS: STATE & COMPLAINANT: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DHANAREKHA, D/O. CHERIKAL APPUKKUTTAN, PAZHAMPALAKKADU, ALATHUR TALUK. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR SRI.V.G.ARUN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/07/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. .................................................. Crl. M.C. 686 of 2005 ................................................... Dated, this the 5th day of July 2007 O R D E R . 482 . . . In this petition filed under Sec Cr P C the petitioners who . 2 9 . . . 375 2004 are accused Nos and in C C No of on the file of . . . ., , 494, the J F C M Alathur for offences punishable under Sections 109, 112, 114 120 34 . . . and B read with Section I P C seek to quash the complaint so far as it relates to them and the consequential . proceedings 2. I heard the learned counsel appearing for the revision 2 petitioners and the learned counsel appearing for the nd respondent . complainant 3. 10 The revision petitioners and others were prosecuted 2 by the nd ( ) respondent herein Dhanarekha for the aforementioned Crl.M.C. 686 of 2005 -:2:- – offences by means of Annexure A private complaint lodged before . . . ., . :- the J F C M Alathur The gravamen of the complaint is as follows The first accused is the husband of the complainant . 2 Dhanarekha nd ( ) accused Petta is the mother of the first accused ( 2 incidentally nd accused who is the first revision petitioner died ). 3 during the pendency of this revision petition rd accused is the , 4 elder brother of the first accused th 5 accused is his wife and th . 6 accused is his daughter th accused is another elder brother of the 7 first accused and th . 8 accused is his wife th accused is still elder . 9 brother of the first accused th 2 accused who is the nd revision petitioner herein is a neighbour of the first accused and who 2 allegedly participated in the nd marriage and thereby allegedly . 10 abetted the same th accused is the lady who was allegedly . 11 married by the first accused in the impugned marriage th accused 10 is the father of the th 12 accused and th . accused is her mother The marriage between the first accused and the de facto complainant 10-12-1995. , 35 was on At the time of marriage sovereign of gold 35,000/- . ornaments and rupees in cash were given The first few Crl.M.C. 686 of 2005 -:3:- . days of marriage were happy Thereafter the de facto complainant . 1 8. was constantly harassed by accused Nos to The first accused left the de facto complainant in her parental home some 1997. , time in April Thereafter he neglected her and did not make . any enquiry about her A female child was born to the de facto 29-10-1997. complainant in the first accused on Subsequently the first accused had initiated steps for dissolution of the marriage . . . 69 between him and the de facto complainant by filing M O P of 1999 , . before the Sub Court Palakkad The de facto complainant 23-5-2001 came to know that on her husband the first accused was 10 seen travelling in a bus along with the th accused Subha as if they . were man and wife On enquiry made by the de faco complainant . 112 12 she came to know that accused Nos and had having full knowledge about the earlier marriage of the first accused with the de 10 facto complainant had given their daughter th accused in . marriage to the first accused The second marriage was conducted , . 2 9 at the instigation initiation and assurance of accused Nos to and 11 12 and with a view to conceal the same from the de facto Crl.M.C. 686 of 2005 -:4:- . complainant and as part of the criminal conspiracy hatched by them . Hence the complaint 4. The learned Magistrate took cognizance of the offence . . 375 2004 . and registered the case as C C of 5. 2 In as much as the nd accused the first revision petitioner died during the pendency of the case and the charge . against her is abated What now survives for consideration is as to whether there are sufficient averments in the complaint so as to rope 9 in the th 2 accused who is the nd petitioner herein who is allegedly 78 . an elderly man aged years 6. 5 Except for an omnibus allegation in Annexure A , complaint that the second marriage was conducted at the instigation . 2 9, 11 12, initiation and assurance of accused Nos to and there is 9 absolutely no specific allegation against the th accused with regard . to the bigamous nature of the marriage His complaint is silent as 9 to the knowledge if any of the th accused regarding the factum of the first marriage of the first accused with the de facto . , complainant To put it differently the complaint does nto allege Crl.M.C. 686 of 2005 -:5:- 9 that A had instigated or taken initiation or given any assurance for 2 the nd marriage with the knowledge that the first accused had already married with the de facto complainant and the said marriage . was subsisting which is a sine a qua non for a prosecution under Sec 494 . 109 . . . , , read with Sec I P C Any amount of initiation instigation 2 and assurance given for the nd marriage without the knowledge about the subsistence of the earlier marriage will be sufficient to 9 rope in the th . , 9 accused Such being the position to drive the th accused to an ordeal of a trial will amount to an abuse of the process . 9 of the court th 2 accused that the nd , revision petitioner need not , . , therefore face the trial Hence Annexure A complaint so far as it 9 relates to the th , accused and the consequential proceedings so far 9 as they relate to the th . accused stand quashed . . . . This Crl M C is allowed in part . , V RAMKUMAR JUDGE . ani Crl.M.C. 686 of 2005 -:6:-