IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.MC.No. 1559 of 2009() ------------------------- CRIME NO.1064/08 OF PUNALUR POLICE STATION PETITIONER/4TH ACCUSED: --------------- D. RAMACHANDRA PILLAI, AGED 52 YEARS, SUB REGISTRAR, PUNALUR, SUBHASH MANDIRAM, KADAVOOR, PERINAD P.O., PUNALUR, KOLLAM. BY ADV. SRI.ALAN PAPALI RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA (CRIME NO.1064/2008 OF PUNALUR POLICE STATION, KOLLAM), REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 1559 OF 2009 ------------------------------------------ Dated 26th May 2009 O R D E R Petitioner is fourth accused in Crime No.1064/2008 of Punalur police station, Kollam. He is Sub Registrar of Punalur. On 13/8/2008 Jyothish and Chithira gave notice of their intended marriage under the Special Marriage Act, 1954. It was published in the notice board, as evidenced by Annexure-1 copy of that notice on 4/10/2008. After obtaining a declaration made by the bride groom and bride in the presence of the witnesses, marriage was solemnised and Annexure-2 certificate was issued on the same day. Later on 31/10/2008 along with her parents, Chithira preferred Annexure-3 complaint producing copy of Annexure-5 birth certificate obtained from the Panchayat to show that her date of birth is 31/3/1991 and not as shown in the copy produced earlier. Petitioner directed them to produce the original of Annexure-5 and after verifying the original and getting satisfied that the date of birth is not as CRMC 1559/09 2 stated originally, the marriage under Annexure-4 solemnised earlier was declared invalid on 31/10/2008. Meanwhile, on 26/12/2008 finding that Chithira was missing her father filed a complaint before Punalur police which was registered as crime 1064/2008 evidenced by Annexure-6 FIR. Subsequently under Annexure-7, the boy Jyothish and Annexure-8 his relative Mani and under Annexure-9, the document writer Rajendra Babu were implicated as accused 1 to 3. 2. In February 2009 the mother of Chithira had filed a habeas corpus writ petition before this court and by order dated 11/3/2009 the detinue was given to the mother evidenced by Ext.A10 judgment. On 21/3/2009 statement of Chithira was recorded in crime 1064/2008. Annexure-2 statement was produced before the Magistrate. Later under Annexure-13 report dated 27/3/2009 petitioner was implicated as fourth accused on the allegation that he failed to give information which is bound to give and thereby committed offence under Section 202 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the FIR as against the petitioner contending that the allegation against him CRMC 1559/09 3 do not constitute an offence under Section 202 of Indian Penal Code or any other offence and so it is to be quashed. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for petitioner pointed out that petitioner was implicated as accused under Annexure-13, only on the allegation that he did not furnish the information regarding the commission of the offences which came to his knowledge and under Section 202 of Indian Penal Code only if petitioner is bound to inform the police about the information, he could be punished for the offence and Section 39 of Code of Criminal Procedure provides the details of the offences of which a person has to give information and none of the offences alleged in the case come within the ambit of Section 39 of Code of Criminal Procedure and therefore, even if allegation of the investigating officer is accepted, it will not make out an offence and therefore it is to be quashed. 5. Learned Public Prosecutor pointed out that a copy of the birth certificate of Chithira was forged and produced before him and even though copy CRMC 1559/09 4 of the original birth register along with Annexure-3 complaint was filed by Chithira and on verifying the original certificate petitioner was satisfied that there was forgery, petitioner did not inform the police about the commission of the offence and therefore an offence under Section 202 of Indian Penal Code is committed and as the matter is under investigation, there is no reason to interfere with the investigation at the threshold. Learned Public Prosecutor submitted that as it is at the initial state of investigation, on investigation the real offence committed could be fixed and therefore at this stage no interference be made. 6. Section 202 of Indian Penal Code provides that whoever knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally, bound to give, shall be punished for the offence provided therein. Therefore, to invoke an offence under Section 202, the person who did not furnish the information must have a legal duty to furnish that information and he intentionally omitted to give that information in respect of the said CRMC 1559/09 5 offence then only an offence under Section 202 is attracted. The question therefore is whether petitioner in his capacity as Sub Registrar is bound to give information regarding the commission of offences involved in this case. 7. The case is now being investigating for the offence under Sections 363, 465, 466, 471 and 202 read with Section 34 of Indian Penal Code. Section 39 of Code of Criminal Procedure provides the offences on which public has to give information. Under sub Section 1 every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the offences shown in clause (i) to clause (xii)in the absence of reasonable excuse, the burden of proving which excuse shall lie upon that person, shall forthwith give information to the nearest Magistrate or police officer of such Commission or intention of conviction of the offence. Therefore, unless the offences alleged come within clause (i) to clause (xii) of sub Section 1 of Section 39, an offence under Section 202 of Indian Penal Code is not attracted. None of the offences under Section 363, 465, 466, 471 of Indian Penal Code come within CRMC 1559/09 6 clause (i) to clause (xii) of sub Section 1 of Section 39. Therefore, even if the allegation against the petitioner is accepted as correct and proved, the ingredients of an offence under Section 202 of Indian Penal Code is not made out. The only allegation against petitioner is commission of an offence under Section 202 of Indian Penal Code. In such circumstances, when the allegations against petitioner even if are accepted at their face value in their entirety, prima facie do not constitute any offence alleged against petitioner. The principles laid down by the Apex court in (AIR 1992 SC 604) squarely applies to the facts. Hence under Section 482 of Code of Criminal Procedure the FIR is against petitioner is liable to be quashed. Petition is allowed. Annexure A6 FIR in crime 1064/2008 of Punalur police station as against petitioner is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.