IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 Crl.MC.No. 3446 of 2011() ------------------------------------ S.C. 403/2010 OF ASSISTANT SESSIONS COURT, KOYILANDY CRIME NO.455/2008 OF PERAMBRA POLICE STATION. .......... PETITIONER(S): ACCUSED ------------------------------------------ SUBEESH P.P., AGED 28 YEARS, S/O.SURENDRAN, PADINHARE PUTHAN PURAYIL, PAYYOLI, KOYILANDY TALUK. BY ADV. SRI.C.BHASKARAN RESPONDENT(S): STATE ------------------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.455 OF 2008 OF PERAMBRA POLICE STATION).682 031. BY PUBLIC PROSECUTOR SMT.R.REMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss CRMC. NO.3446/2011 APPENDIX PETITIONER(S) ANNEXURES ANNEXURE-1:-TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.455/08 DT.24.7.2008. ANNEXURE-2:-TRUE COPY OF THE FINAL REPORT BEFORE ASSISTANT SESSIONS COURT KOYILANDY. ANNEXURE-3:-THE TRUE COPY OF THE ALLEGED AGREEMENT OF MARRIAGE DATED 8.10.2007. ANNEXURE-4:-THE COPY OF THE F.I.STATEMENT OF SREEJA BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, VADAKARA. ANNEXURE-5:-STATEMENT OF SREEJA U/S 164 OF CR.P.C. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3446 of 2011 ----------------------------------- Dated this the 17th day of October 2011 O R D E R Petitioner is the accused in S.C.No.403/2010 on the file of Assistant Sessions Court, Koyilandy. The charge sheet against him was filed under Sec.376 IPC. The allegation in the final report is that the accused had sexual intercourse with the de facto complainant by making her believe that she was married by the accused. 2. The learned counsel for the petitioner submits that even going by the statement of the de facto complainant, it can be seen that an agreement was executed between the complainant and the accused stating that they were married. It is also stated that in front of the temple the parties had exchanged garlands evidencing a marriage. According to the learned counsel, there was a marriage and so offence under Sec.376 is not attracted. Crl.M.C. No.3446 of 2011 -: 2 :- 3. There can be no marriage by executing an agreement. Admittedly no marriage was conducted according to the customary rites or as per the provisions of the Special Marriage Act nor was the marriage registered under the relevant rules. The so called exchange of garlands cannot be treated as a marriage according to the customary rites. Whether the complainant had consented to have sexual intercourse with the accused is a matter which has to be found out at the time of trial. Whether the facts disclosed would amount to an offence under Sec.376 IPC or only under Sec.493 IPC or still a lesser offence are matters to be gone into by the trial court. 4. It is submitted by the learned counsel for the petitioner that the charge has already been framed by the learned Assistant Sessions Judge. That means after going through the records the learned Sessions Judge found that there are prima facie materials to frame charge against the accused. The question whether the offence would Crl.M.C. No.3446 of 2011 -: 3 :- ultimately fall under Sec.376 IPC or under Sec.493 IPC or under any other provision is a matter which will certainly be considered by the trial court. It is not the time for this Court to interfere with the trial of the case by invoking Sec.482 Cr.P.C. Hence, this Crl.M.C. is dismissed. The petitioner can raise all his contentions before the trial court at the appropriate stage. N.K.BALAKRISHNAN, JUDGE. Jvt