BAIL SLIP The Petitioner/Accused namely Ravichandran was directed to be released on bail as per the order of this court dated 10.02.2006 and made in CRL MP No.894 of 2006 in Crl RC No.98 of 2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26.7.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.R.C.No.98 of 2006 Ravichandran .. Sole Accused/Petitioner Vs. Yasodhai .. Complainant/Respondent Prayer:- Criminal Revision is filed under Sections 397 and 401 Cr.P.C against the judgement dated 25.2.2005 made in C.A.No.13 of 2004 on the file of the Principal District and Sessions Judge, Perambalur confirming the judgement dated 30.7.2004 made in C.C.No.548 of 1997 on the file of the Judicial Magistrate, Jayamkondam, Perambalur District. For Petitioner : Mr.S.Ashok Kumar, S.C for Mr.R.Karthikeyan For Respondent : Mr.A.Vijayaraghavan, S.C Mr.T.Murugananthan O R D E R The accused is the revision petitioner herein. The respondent and the accused herein are the residents of Eravangkudi. The respondent herein had three daughters and one son and Meena is her youngest daughter and P.W.2 Meena during September 1997, lodged a police complaint against the wife of one Kasinathan who is none else than the mother of the accused/appellant Ravichandran. The complaint proceeds as if the accused Ravichandran and the complainant Meena had intimacy with each other, in the course of which, she became pregnant and he advised her to abort the same and she refused to do so and Ravichandran refused to marry her and pending criminal case in connection with the same, the accused mother waylaid her at 4.30 pm on 2.9.1997 while she was grazing her cattle and started shouting at her and hit her by Aruval upon her head and she prevented her with her left hand, but sustained injury. The complaint received was registered as crime no.423 of 1997 in Meenjuruti Police Station for the offence under Section 324 IPC and within 10 days viz., on https://hcservices.ecourts.gov.in/hcservices/ 11.9.1997, the wife of Kasinathan i.e., the accused in the earlier complaint, gave a police complaint against Meena and one Chinnapillai Susila and Yasodha as if all the four, due to previous enmity waylaid her and attacked her on 2.9.1997 and the same was registered as Crime No.450/97 in Meenjuruti police station against the four persons for the offences under sections 341, 324 and 323 IPC and pending the same, the respondent herein during October 1997 filed the complaint arising out of which is the present criminal revision against the accused/revision petitioner. 2.The complaint proceeds as if the accused on 15.11.1996 approached her daughter Meena who was grazing her cattles and spoke to her with such intimacy and proposed to marry her and when she refused to pay any heed to his proposal, he followed her and caught hold of her hands in front of Ayyanar koil and promised to marry her and put kumkum on her forehead and tied Thali around her neck to make her to believe that the accused married her and the accused by taking advantage of her confused state of mind, took her to the land of one Balakrishnan nearby casuarina thope and had intercourse with her and thereafter, had frequent intercourse with her in very many places and Meena also believing to be lawfully married to the accused, gave consent for the same and due to the same, she became pregnant and when the accused was informed about the same and was compelled to take her to his house as his wife, he forced her to abort the child and refused to marry her, leading to exchange of wordy quarrel between the two and on being informed about the same, the complainant along with Meena went to the house of the accused and requested his father to accept her daughter and he shouted at them and questioned her character and threatened to kill them with koduval and the mother and the daughter hence, had been to Dr.Kamaladevi and terminated the pregnancy and convened a Panchayat. But the accused and his father did not submit to the decision of the Panchayat to marry Meena. As a result, the complainant lodged a police complaint on 1.5.1997 at All Women Police station and no action was taken upon the same. In the mean while, Meena had hemorrhage due to abortion on 6.5.1997 and she was under treatment in a private hospital. The accused by reason of his deceitfully having intercourse with her by making her to believe that both of them were lawfully married, was charged for the offences under Sections 493, 496 and 417 IPC. 3.The prosecution has in order to prove the allegations raised in the private complaint against the accused, examined the complainant, her daughter, eye witnesses, paternal uncle of Meena and panchayathars as P.Ws.1 to 8 and has produced the notice issued by Kasinathan, complaint given in All Women Police Station, receipt issued by AWPS for the same and reply notice as Exs.P1 to P4. The accused and his witnesses were examined as D.W.1 and D.W.2 and has produced the complaint given by Meena and the mother of the accused Chandra against each other as Exs.D1 and D2. 4.The trial court believed the case of the complainant and held that the prosecution has proved the guilt of the accused for the offences under Sections 493, 496 and 417 IPC and convicted and sentenced him. Aggrieved against the same, the accused filed C.A.No.13/2004. The Appellate Court by negativing the legal and https://hcservices.ecourts.gov.in/hcservices/ factual defence raised by the accused, confirmed the judgement of conviction of the trial court. Hence, this revision by the accused before this court. 5.The learned counsel for the revision petitioner has raised the following legal and factual objections against the validity of the judgment of conviction and sentence: (i)as the allegations raised in the private complaint are to proceed against the accused for the offences under Sections 493, 496 and 417 IPC, the complaint filed by the mother of the so called victim and not by the so called victim who is the aggrieved party is not maintainable. (ii) even assuming that meena was a minor, private complaint by the guardian without getting any permission from the court is not maintainable. (iii) on merits, the allegations raised in the complaint given by the mother stand contra to the allegations raised by her daughter Meena in her Ex.D1 complaint and the allegations raised in Ex.D1 complaint will go to prove the consent of Meena for co-habitation without either any lawful or fake form of marriage. 6.On facts, the entire case proceeds as if the accused deceitfully induced PW2 Meena to believe, by undergoing incomplete and invalid form of marriage that both Meena and the accused were lawfully married and had co-habitation with her. But for such fake form of marriage, she would not have allowed him to have intercourse with him and in that way, the accused cheated her and the act so committed by the accused constituted offences punishable under Sections 493, 496 and 417 IPC. 7.In order to substantiate the main allegations, the direct witnesses are P.W.2-Meena, P.W.3-Sivakumar and P.W.4-Balakrishnan. While P.W.2 is the so called victim, P.Ws.3 and 4 according to the prosecution, happened to see both P.W.2 and the accused in compromising situation. While P.W.3 did not support the prosecution theory, P.W.4 would state that he saw both the victim and the accused in such close intimacy at backyard and he scolded them and thereafter, they left the place, requesting him not to reveal it to others and he did not disclose it to anyone. It is true that P.W.2 has in the witness box, reiterated the allegations raised in the complaint. But the allegations raised in Ex.D1 given against the accused mother would falsify her entire theory as if she allowed the accused to co-habitate with her only after going through some form of marriage and under the believe that both of them were married. The other complaint proceeds as if she is aged 18 years; Meena and Ravichandran had affair with each other and she became pregnancy through him and he advised her to abort the child and she refused to do so and he inturn refused to marry her. 8.Even under Ex.D3 complaint submitted to the Superintendent of Police, she has definitely stated that they had co-habitation with each other without undergoing any form of marriage and only on the assurance given by the accused to marry her. Ex.P2 is the copy of the complaint by her on 1.5.97 and the allegations raised in page 2 at para 2 is that she allowed the accused to have co-habitation with her frequently only on the assurance given by him that he will marry her as per customs and she approached him on 25.4.97 and asked https://hcservices.ecourts.gov.in/hcservices/ him to marry her and he inturn asked her to abort the child. Ex.P3 is the receipt given to Meena for the complaint given by her against the accused on 1.5.97 and there also, it was stated that she became pregnant through the accused on his assurance that he will marry her. Such allegations would only go to show that co-habitation of Meena and the accused is with consent of Meena and with full knowledge that there is no marriage between the accused and Meena. Further, the allegations so raised against the accused in her earlier complaint by P.W.2 Meena is sought to be improved at every stage in such a manner so as to attract the offence under Sections 496, 493 and 417 IPC, as such, no offence under sections 493 and 496 IPC can be held to be attracted against the accused. In so far as the offence under Section 417 IPC is concerned also, no case is made out against the accused for the simple reason that the entire case proceeds as if he had intercourse with her by making her to believe that they both married each other and thus, cheated her. 9.However, both the courts below, without considering the allegations in the light of the earlier conduct of the parties and admission of one of the parties to co-habitation regarding the circumstances under which, they had sexual intercourse with each other and she became pregnant through the other party, have simply believed the case of the complainant and arrived at a conclusion that all the three offences are made out against the accused. In my considered view, the findings rendered by the courts below do have no legal and factual basis and the same cannot hence be allowed to be sustained. 10.The legal defence raised on the side of the accused that the complaint filed by her mother for certain acts of commission by the accused upon her daughter constituting the offences under Sections 493, 496 and 417 IPC are not maintainable as the aggrieved person is P.W.2 Meena and not her mother. Such defence raised is by resorting to Section 198 Cr.P.C under which the complaint for any offences covered under Chapter XX of Indian Penal Code can be filed only by the person aggrieved by the offence and exception to the rule is when the aggrieved person is under the age of 18 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 and any other person may, with the leave of the Court, make a complaint on his behalf. The offences punishable under Chapter XX IPC are the offences under Sections 493 to 498 relating to matrimonial offences. Section 493 deals with cohabitation caused by a man deceitfully inducing a belief of lawful marriage, Section 494 deals with second marriage during lifetime of husband or wife, Section 495 renders concealment of former marriage from person with whom subsequent marriage is contracted as an offence, Section 496 deals with marriage ceremony fraudulently gone through without lawful marriage, Section 497 is penalty section for adultery and Section 498 is for punishing enticing or taking away or detaining with criminal intent a married woman. 11.In this case, the defence so raised by the accused is rejected by the lower court on two grounds: (i) the offences for https://hcservices.ecourts.gov.in/hcservices/ which the complaint is filed are punishable under Sections 493, 496 and 417 IPC and the main offence is under section 417 IPC and the offences under sections 493 and 496 are only ancillary offences, as such, the bar under section 198 Cr.P.C is not attracted and the technical objection is not sustainable and (ii) the victim girl being a minor is entitled to be represented by her guardian mother and the complaint filed by the mother is maintainable. Regarding the first ground the same is on the face of the record totally erroneous. The allegations raised in the complaint are as if the accused went through ceremony of marriage with the victim with dishonest and fraudulent intention with full knowledge that it is not a proper marriage and made her to believe that they are husband and wife and subjected her to co-habitation and thus cheated her. The material acts which attract the provisions of law referred to above, are (i) act of undergoing some form of marriage with fraudulent intention (ii) deceitfully making her to believe that the marriage ceremony underwent constitutes lawful marriage (iii) act of having co- habitation with other party to such form of marriage under such belief. That being so, the acts constituting the offences punishable under Sections 493 and 496 IPC are the main offences and commencement of the offence and the act of cheating is the accomplishing of the offence. 12.Regarding the competency of the mother to file a complaint there is absolutely no evidence that the victim was minor either on the date of occurrence or on the date of the complaint. Meena has in her Ex.P2 complaint dated 1.5.1997 and in Exs.D1 and D3 referred to her as 18 years old and the earlier complaint is given by Meena herself, whereas the author of the present complaint is her mother. It is nobody's case that Meena was minor during the relevant point of time. It is not stated so in the complaint given by her mother and no certificate is produced to show that she was on the date of the complaint not attained majority. Even otherwise the complaint is filed by the mother without the leave of the court and no application is filed and no leave is obtained from the court concerned for lodging a complaint on behalf of the aggrieved party. The complaint filed by the so called aggrieved party viz., her mother, that too, without the leave of this court, is not a technical objection as observed by the lower court, but goes to the root of the maintainability of the complaint and the same is by applying the reasoning of Hon'ble Supreme court in the decisions reported in 2006 (6) SCC 536 in Manish Das (Dr.) v. State of U.P. and another and our High Court in 1990 LW (Crl.) 442 in Pushpa and others v. Vellamuthu not maintainable. 13.In the case dealt with by the Supreme Court, the defacto complainant is the father of the aggrieved party and the complaint was filed under Sections 494 and 420 IPC and the same was questioned by the husband/accused under Sections 198 and 482 Cr.PC and the quash petition was dismissed and the appeal was filed before the Supreme court. The supreme court quashed the proceedings on the ground that the daughter of the defacto complainant had grievance against her husband, as such, the complaint filed not by the wife of the appellant but by her father on her behalf alleging commission of https://hcservices.ecourts.gov.in/hcservices/ offence under Section 494 IPC, was not proper and the Magistrate was not justified in taking cognizance of the same. Similar view is also expressed by our High court in 1990 LW (Crl.) 442, where the complaint was filed against the daughter-in-law for the offence under Sections 494 and 109 IPC. When the leave was sought for under Section 198(2) Cr.P.C on the ground that the husband of the accused/the son of the complainant was at Bombay for his employment purpose, the same is dismissed on the ground that the father is not the aggrieved person. When the initiation of the proceedings itself is not legally proper and is in violation of Section 198 Cr.P.C and the cognizance taken for the offence is without jurisdiction, the same vitiates the proceedings which inturn renders the judgment of conviction and sentence, passed in such proceedings to be legally unsustainable. Viewing from any angle, the complaint and the judgment of conviction impugned herein is in gross violation of law and incurable material irregularity, which renders the proceedings to be void and the judgment of conviction is hence liable to be dismissed. 14.Though on the respondent's side, the following judgments reported in (i) AIR 1974 SC 1256 (Bhoor Singh and another v. State of Punjab) (ii) 1987 (2) SCC 74 in State of Karnataka v. Kuppusamy Gownder and others (iii) 2008 Crl.L.J. 276 of Calcutta High Court in Ajoy Kumar Ghosh v. The State of W.B. and another (iv) AIR 1955 Mad 129 in T. Subramania Achari, are cited for the legal proposition that the proceedings cannot be quashed on the ground that cognizance was taken erroneously without any plea and proof of any prejudice caused to the other party, the same is not applicable to the facts of the present case as the objection raised herein is the maintainability of the complaint, on the ground of lack of jurisdiction of the court to take cognizance of the offence. 15.In the result, the criminal revision is allowed by setting aside the judgment dated 25.2.2005 made in C.A.No.13 of 2004 on the file of the Principal District and Sessions Judge, Perambalur confirming the judgement dated 30.7.2004 made in C.C.No.548 of 1997 on the file of the Judicial Magistrate, Jayamkondam, Perambalur District and the accused is acquitted from the charges. The bail bond, if any, executed by the accused shall stand cancelled and the fine amount if any paid by the accused shall be refunded to him. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Judicial Magistrate, Jayamkondam, Perambalur District. 2.The Chief Judicial Magistrate, Perambalur 3.The Principal District and Sessions Judge, Perambalur. https://hcservices.ecourts.gov.in/hcservices/ 4.The Superintendent, Central Prison,Trichy 1 cc To Mr.Karthikeyan, Advocate, SR.46007 1 cc To Mr.T.Muruganantham, Advocate, SR.45830 Crl.R.C.No.98 of 2006 MG(CO) RH (21.12.11) https://hcservices.ecourts.gov.in/hcservices/