IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Crl.MC.No. 2891 of 2005(B) -------------------------- AGAINST THE ORDER IN CC . 346/2001 IN CC.575/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, SULTHANBATHERY .................... PETITIONER: ACCUSED NOS.1,4 & 5: -------------------------------- 1. GIRISH BABU, AGED 29 YEARS, S/O. VALLIKKATTIL RAVEENDRAN,THAZHATH WAYAL VEEDU, MEENANGADI, P.O. KARACHAL, WAYANAD. 2. RAVEENDRAN VALLIKKATTIL, THAZHATH WAYAL VEEDU, MEENANGADI, P.O. KARACHAL, WAYANAD. 3. SATHYA BHAMA, W/O. RAVEENDRAN, THAZHATH WAYAL VEEDU, MEENANGADI, P.O. KARACHAL, WAYANAD. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M SRI.N.A.SHAFEEK RESPONDENTS: COMPLAINANT AND STATE: ----------------------------------- 1. BABITHA, D/O. SREEDHARAN, AGED 26 YEARS, POOLAKKANDI VEEDU,ELATHOOR AMSOM, PUTHUR DESOM, P.O. PUTHIYANGADI, KOZHIKODE DIST. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.A.SALIL NARAYANAN PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ------------------- Crl.M.C.2891/2005 -------------------- Dated this the 3rd day of January, 2008 ORDER This petition is filed to quash Annexure-A1 complaint filed against the petitioners, who are accused Nos.1, 4 and 5 in the complaint. 2. As per the allegations in the complaint, the first petitioner was married to the complainant, first respondent herein, as per the Hindu Religious Rights and when the marriage was in subsistence, he married another person, who is arrayed as accused No.2, in accordance with the Hindu Religious rights. Marriage was also registered at the Sub Registrars Office, Sulthan Bathery. Accused Nos. 4 and 5 are the parents of the first petitioner, with whose connivance second marriage was conducted, as abetted by them. Learned counsel appearing for the petitioners submitted that the complaint deserves to be quashed, since on the same set of facts, another complaint was filed and it is produced and marked as Annexure-A2. Evidence was also adduced in Crl.M.C.2891/2005 2 that case and by an order dated 10.1.2003, which is marked as Annexure-A3, all the accused were discharged under Section 245(1) Cr.P.C. 3. It was pointed out by the learned counsel appearing for the petitioners that in the earlier complaint as well as in the present complaint, there is same set of witnesses to prove the alleged facts. Therefore, it is argued that complainant may not be given another opportunity to harass the petitioner by going through a drama of criminal trial again, though technically, there is no bar under Section 300 to prosecute the petitioners, as there is only a discharge under Section 245(2) of Cr.P.C. 4. On going through the complaint, Annexure A1 and A2, it is clear that almost on the same set of facts, a complaint was filed by the same complainant against the petitioners alleging offence under Section 494 read with Section 109 IPC. The allegation that the marriage Crl.M.C.2891/2005 3 was conducted in accordance with the Hindu Religious rights and that it was registered also at the Sub Registrar Office were stated in both the complaints. The Sub Registrar was also made a witness in both the complaints. 5. It is pointed out by the learned counsel for the petitioners that only an agreement for marriage was registered in the Sub Registrars Office between the first and second accused, but such registration will not constitute a marriage, for proving an offence under Section 494 IPC. Complainant had enough opportunity to adduce evidence and to prove that there was marriage between the first and second accused as per the custom. But that was not done. On hearing both sides I am satisfied that the present complaint is filed on the same set of facts, as that of the earlier complaint. 6. It was also submitted that against the order of discharge, a Revision was filed before the Sessions Court Crl.M.C.2891/2005 4 as Crl.R.P.15/2003 and it was pending for about four months and thereafter, it was withdrawn, as not pressed. The Revision was dismissed. It is submitted that the complainant had enough opportunity to adduce evidence and prove her case. But the evidence adduced by the complainant only amounted to hearsay regarding the marriage. Though the complainant alleged that the marriage was registered, no document was produced and no attempts were made to prove marriage by registration also. As pointed out by the learned counsel for the petitioners, it may appear that what is registered is only a marriage agreement. 7. Learned counsel for the petitioners argued that the parents of the first petitioner and the second petitioner are unnecessarily dragged to Court. Therefore, the petitioner requests that the entire proceedings initiated against the petitioners may be quashed. On hearing both sides, it appears that accused Nos. 3 to 5 are unnecessarily dragged and they need not be proceeded Crl.M.C.2891/2005 5 against especially in the light of Annexure-A3 order. However, on the facts and circumstances of the case, I find that it may not result in grave unjustice, if an opportunity is given to the complainant to prove the allegations made against accused Nos.1 and 2 in the case. There is also no bar under Section 300 to file a fresh complaint, if there is only a discharge of the accused. 8. Taking into account the various facts and circumstances of the case, I find that an opportunity can be given to the complainant to prove the case on condition that she pays Rs.5,000/- as cost to the first petitioner. 9. In the result, complaint, as against A3 to A5 is quashed. The complaint can be proceeded with against the first and second accused provided that the complainant deposits a total sum of Rs.5,000/- as cost to first and second petitioners, before the trial Court on or Crl.M.C.2891/2005 6 before 25.2.2008. If such amount is not deposited within such time, this petition will be treated as dismissed. 10. Parties shall appear before the trial Court on 25.2.2008. Crl.M.C is partly allowed. K.HEMA, Judge mrcs