IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 2874 of 2009() --------------------------------------- (F.I.R.NO.339/09 OF KARUNAGAPPALLY POLICE STATION) PETITIONER(S): 2ND ACCUSED: ------------------------------------------------- THANKAMMA, D/O.PULINTHANATHU MATHAI, PULINTHANATHU VEEDU, CHANGALERI, MANNARKKAD, PALAKKAD. BY ADVS. MR.S.SANTHOSH KUMAR, SMT.BABY JOSE. RESPONDENT(S): COMPLAINANT AND DEFACTO COMPLAINANT: ------------------------------------------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. NEENA, D/O.SAROJAM, KADAKAPATTIL VEEDU, PUTHENTHURA MURI, NEENDAKARA VILLAGE, KOLLAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR R2 BY ADV.MR.AJAYA KUMAR. G. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2874 OF 2009 ------------------------------------------ Dated 15th February 2010 O R D E R Petitioner is the second accused in crime No.339/2009 of Karunagappally police station registered under Annexure-2 FIR based on Annexure-1 complaint filed by second respondent before Judicial First Class Magistrate, Karunagappally and sent for investigation under Section 156(3) of Code of Criminal Procedure. Annexure-1 complaint shows that case of the second respondent was that first accused married her on 4/12/1997 and third accused is her mother-in-law and a child was born on 19/6/1998 and first accused did not take proper care of the wife and child and both the husband and mother-in-law treated her Crmc 2874/09 2 with cruelty and thereby committed an offence under Section 498 A of Indian Penal Code. It is then alleged that when the marriage of the petitioner with the first accused was subsisting, on 26/5/2003, first accused married petitioner and a child was born in that wedlock and whenever first respondent questioned first accused regarding the said marriage, she was treated with cruelty. It is alleged that accused 1 and 2 committed an offence under Section 494 of Indian Penal Code and accused 1 and 3 committed offence under Section 498 A of Indian Penal Code. Annexure-2 FIR was registered for the offence under Section 498 A and 494 read with Section 34 of Indian Penal Code. The petition is filed under Section 482 of Code Crmc 2874/09 3 of Criminal Procedure to quash Annexure-2 FIR, as against the petitioner contending that ingredients of the offence as against her is not attracted. Petitioner would contend that after coming to know about the marriage of the first accused with the second respondent, petitioner filed O.P. 523/2007 before Family court, Palakkad and by Annexure-5 order her marriage with first accused was dissolved and in such circumstances, continuation of the proceedings as against the petitioner is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard. 3. As rightly pointed out by the learned counsel appearing for the Crmc 2874/09 4 petitioner the only allegation raised in Annexure-1 complaint as against the petitioner is that first accused married petitioner, when the marriage of first respondent with first accused is subsisting and she and first accused thereby committed offence under Section 494 of Indian Penal Code. Though learned counsel appearing for the first respondent argued that petitioner married first accused with the knowledge that he was already married to first respondent and their marriage is subsisting, Annexure-1 complaint does not contain any such allegation. There is no allegation in the complaint that petitioner married first accused with the knowledge that he was already married and his spouse is alive. In such circumstances, question Crmc 2874/09 5 is if the allegations in Annexure-2 complaint is accepted in toto it would make out an offence under Section 494 of Indian Penal Code as against the petitioner. 4. Section 494 of Indian Penal Code provides that whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, in addition to fine. Therefore, an offence under Section 494 would be attracted only as against the husband or wife who conducts another marriage, when his or her wife or husband is alive. Though an offence under Section 494 would lie as against the Crmc 2874/09 6 first accused, an offence as against petitioner would lie. In such circumstances, continuation of proceedings as against the petitioner is only an abuse of process of court. Petition is allowed. Annexure-2 FIR as against petitioner the second accused is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.