IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.MC.No. 2249 of 2009 -------------------------------- CC.149/2008 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER(S): 4TH ACCUSED: ------------------------------------------- DIVYA, AGED 31, ALIAS THATHA D/O.BRAHMADASAN, MANKUZHIYIL VEEDU, THALACHIRA P.O VADASSERIKARA VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT(S): STATE & COMPLAINANT: ------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VIMAL SINDHU M, AGE 33 @ SINDHU, D/O.MOHANAN, SINDHU BHAVANAM, MALAYALAPPUZHA VILLAGE, PATHANAMTHITTA DISTRICT. R1 BY GOVT.PLEADER SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2249 OF 2009 =========================== Dated this the 10th day of July,2009 ORDER Petitioner is the fourth accused in C.C.149/2008 on the file of Chief Judicial Magistrate Court, Pathanamthitta. This petition is filed under section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that there is no allegation as against the petitioner to constitute any of the offences alleged and therefore the case as against the petitioner is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel submitted that Annexure A3 application was filed before the learned Magistrate for discharge; but no order is passed. 4. Learned counsel also pointed out that eventhough there is an allegation in Annexure A1 final report that petitioner committed an offence under section 494 and 498A read with Section 34 of Indian Penal code, there is no allegation that there was a legal marriage between the petitioner and first Crl.M.C.2249/2009 2 accused so as to attract the offence under section 494 of IPC and no offence under section 498A will lie as against the petitioner. There is force in the submission of the learned counsel. Unless there is a legal marriage between the petitioner and the first accused, she cannot be prosecuted for an offence under section 494. In view of Annexure A3 petition filed before the Magistrate, before framing the charge, learned Magistrate necessarily has to consider the defence raised by the petitioner and if no offence is made out as against the petitioner, she is entitled to be discharged. Petition is disposed of directing Chief Judicial Magistrate, Pathanamthitta to consider the contentions raised by the petitioner, before framing the charge, as sought for in Annexure A3 petition. Petitioner is entitled to raise all the contentions raised herein before the Chief Judicial Magistrate. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006