IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.MC.No. 3516 of 2007() ------------------------- CC.583/2005 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... PETITIONER(S): ACCUSED 1 AND 2: ---------------------------------------- 1. BIJU VARGHESE, AGED 38, S/O.C.P.VARGHESE, CHETTUPURATH HOUSE, MANGALATHUNADA P.O., MAZHUVANNOOR. 2. CHINNAMMA VARGHESE, W/O.C.P.VARGHESE, CHETTUPURATH HOUSE, MANGALATHUNADA P.O., MAZHUVANNOOR. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): DEFACTO COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REP. BY DIRECTOR OF GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. LEENA GEORGE, AGED 30 YEARS, D/O.LATE P.J.GEORGEKUTTY, PALATHINKAL HOUSE, THIRUVAMKULAM P.O. ERNAKULAM DISTRICT. PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.6365/07 IN Crl.M.C.NO.3516/07 //DISMISSED// 3.4.2009 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.3516 OF 2007 ----------------------------------------------------- DATED THIS THE 3rd DAY OF APRIL, 2009 O R D E R Petitioners 1 and 2 herein are accused Nos.1 and 2 respectively in C.C.No.583/2005 pending before the Court of J.F.C.M., Kolencherry. The second respondent herein filed a private complaint alleging commission of offence under Section 498A and 506(ii) read with Section 34 of IPC against petitioners 1 and 2 herein. Copy of that complaint is produced as Annexure A3. The learned Magistrate took cognizance of the same which was filed on 7.8.2004 as C.M.P.No.8384/04. The same was forwarded under Section 156(3) Cr.P.C. for investigation. Accordingly, final report was filed after investigation before the J.F.C.M., Kolencherry for the offence under Section 498A, 506(ii) and 34 of IPC against petitioners 1 and 2 herein and taken on file as C.C.No.583/2005, which is pending. Copy of the final report in the above case is produced as Annexure A4. Thereafter, petitioners have filed this petition under Section 482 of Cr.P.C. on 21.11.2007 with the prayer to quash Annexures A3 and A4 and all further proceedings in C.C.No.583/2005 pending before the above court. CRL.M.C.No.3516/07 -2- 2. Heard the learned counsel appearing for petitioners. The second respondent herein who is the defacto complainant has not entered appearance in spite of service of notice to her. 3. It is submitted by the learned counsel appearing for petitioners that it is the admitted case that the marriage between the petitioner and the second respondent was solemnised on 26.8.2002. Subsequently, the first petitioner has filed O.P.No.1220/05 before the Family Court, Ernakulam with the prayer for a declaration of nullity of the marriage between the first petitioner and the second respondent. The second respondent also filed O.P.No.783/2005 for restitution of conjugal rights. The Family Court, Ernakulam as per common order dated 19.10.2006 dismissed the petition filed by the second respondent for restitution of conjugal rights and allowed the petition filed by the first petitioner for declaration of the marriage as null and void. True copy of that common order is produced as Annexure A1. Subsequently, the second respondent challenged that order before this Court and as per judgment dated 14.8.2007 in Mat.Appeal No.233/07 dismissed the appeal preferred by the second respondent, whereby Annexure A1 common order has been confirmed. Copy of that order is produced as Annexure A2. Pending those proceedings, the second respondent herein filed a private complaint on 7.8.2004 as CRL.M.C.No.3516/07 -3- revealed from Annexure A3, which is sought to be quashed. It is submitted by the learned counsel for petitioners that in the light of the decision reported in Shivcharan Lal Verma and Anr. V. State of Madhya Pradesh (JT 2002(2) SC 641), a valid marriage is a precondition for an offence under Section 498A. Annexure A2 order in Mat.Appeal No.233/07 has confirmed the order of the Family Court, Ernakulam as revealed from Annexures A1 and A2. That has become final and nobody has challenged the same. In the light of the dictum in the above said decision of the Apex Court and also considering the facts and circumstances of the present case, the prayer in this petition to quash Annexures A3 and A4 in so far as it concerns the offence under Section 498A is not maintainable and further proceedings under that Section against the petitioners who are accused Nos.1 and 2 respectively in C.C.No.583/2005 is quashed. The learned Magistrate is directed to proceed further against petitioners 1 and 2 in respect of the offence alleged against them under Section 506(ii) read with Section 34 IPC at the earliest. The Crl.M.C. is disposed of accordingly. M.C.HARI RANI, JUDGE. dsn