IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 Crl.MC.No. 839 of 2008() ------------------------ CC.437/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... PETITIONER: 2ND ACCUSED ----------------------- M.K.GEETHA, AGED 45 YEARS, W/O.M.K.SHAJI, 11TH CROSS, UDAYA NAGAR, AYYANTHOLE, THRISSUR. BY ADV. SMT.P.A.ANITHA SMT.P.R.REENA RESPONDENTS: STATE AND DE FACTO COMPLAINANT ------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.K.SHAJI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT - II, KOTTAYAM. BY PUBLIC PROSECUTOR SRI. M.S. BREEZE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON 31-03-2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * CRL.M.C. NO. 839 OF 2008 * * * * * * * * * * * * * * * * * * Dated: 31-03-2008 ORDER In this Crl.M.C. filed under Sec. 482 Cr.P.C. the petitioner (M.K. Geetha) who is the wife of the 2nd respondent (M.K. Shaji) now working as Addl. District and Sessions Judge (Fast Track Court-II) Kottayam seeks to quash Annexure B private complaint and all further proceedings in C.C. No. 437 of 2008 on the file of the J.F.C.M. II, Thrissur. 2. In the said private complaint, the 2nd respondent herein alleged that the first accused therein (Raju.K.) shown as residing at Kolaniyil within the jurisdiction of Kuravilangad Police Station in Kottayam District and who was formerly the personal peon of the complainant had adulterous intercourse with the complainant's wife Geetha who is also shown as residing at Sauparnika , Sree Sathya Sai Samithy, Kottayam within the limits of the Kottayam West Police Station. Besides the said Raju, the complainant has also arrayed his wife Geetha as the 2nd accused. The alleged adulterous intercourse is said to have been committed in the night of 30-12-2007 at Udayanagar in Thrissur. The private complaint was filed before the CRL.M.C. NO. 839 OF 2008 -:2:- Judicial First Class Magistrate - II , Thrissur on 18-2-2008. The learned Magistrate took the sworn statement of the complainant and took cognizance of the offence on the same day itself against both the accused persons and registered the case as C.C. 437 of 2008 and issued summons to both the accused. It is the said proceedings which are assailed in this Crl.M.C. 3. Since the Court of the learned Magistrate is at Thrissur and the address of both the accused persons is shown within the limits of Kottayam District it was submitted before this Court that the learned Magistrate did not conduct an enquiry under Sec. 202 Cr.P.C. which is mandatory after the amendment of the said provision with effect from 23-06-2006. Sub-section (1) of Section 202 Cr.P.C. as amended reads as follows: “202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for CRL.M.C. NO. 839 OF 2008 -:3:- proceeding:” 4. This Court called for a report from the Magistrate to ascertain whether the mandatory enquiry under Sec. 202 Cr.P.C. was conducted or not. As per letter dated 28-2-2008 the J.F.C.M.II, Thrissur reported that he had not conducted an enquiry under Sec. 202 Cr.P.C. before taking cognizance of the offence punishable under Sec. 497 I.P.C. If so, the cognizance taken by the Magistrate is bad in law. 5. Adultery punishable under Sec. 497 I.P.C.is an offence committed against the institution of marriage. Sec. 497 I.P.C. reads as follows :- “497. Adultery - Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor. 6. Thus, a person who has sexual intercourse with another man's wife alone can commit adultery. In other words, a husband can prosecute the paramour of his wife for the offence of adultery, CRL.M.C. NO. 839 OF 2008 -:4:- as a wife is not given a corresponding remedy against another woman who has amorous relationship with her husband. Vide Sreemathy Sawmithri Vishnu v. Union of India - AIR 1985 SC 1618 Sec. 497 I.P.C. clearly shows that in a prosecution for adultery the wife shall not punishable even as an abettor. If so, the petitioner/wife could not have been made an accused in the private complaint filed by the 2nd respondent/husband . For this reason also the cognizance taken by the Magistrate as against the petitioner is bad. 7. In the result, this Crl.M.C. is allowed holding that the cognizance taken without conducting the mandatory enquiry under Sec. 202 Cr.P.C. is bad as against both the accused. The private complaint as well as the proceedings so far as they relate to the petitioner/2nd accused are quashed for the reason that the 2nd accused wife is immune to a prosecution under Sec. 497 I.P.C. These proceedings shall not be reported or published. V. RAMKUMAR, (JUDGE) ani. CRL.M.C. NO. 839 OF 2008 -:5:- a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or b) where the complaint has not been made by a Court, unless the complaint and the witnesses present (if any) have been examined on oath under Section 200. 2) In an inquiry under sub-section (1) the Magistrate may, if he thinks fit, take evidence of witness on oath. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. 3. If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant”. CRL.M.C. NO. 839 OF 2008 -:6:-