IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.MC.No. 2720 of 2008() ------------------------- CC.983/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... PETITIONER/ ACCUSED NO.2 ------------------------------------------ SOMAN, S/O.BALAKRISHNAN, PANAVALLY P.O, CHERTHALA. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS/ DEFACTO COMPLAINANT/COMPLAINANT ---------------------------------------------- 1. GOPINATH, S/O.KRISHNAN NAIR, PADINJAREVALAPPIL, GANDHINAGAR COLONY, NADAMA VILLAGE, THEKKUMBHAGAM KARA, KANAYANNUR TALUK. 2. SUB-INSPECTOR OF POLICE, AROOR. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- CRL.M.C. No. 2720 OF 2008 -------------------------- Dated this the 10th day of March, 2010 O R D E R Petitioner is the second accused in C.C. No.784/2006. The learned Magistrate has taken cognizance against the two accused on Annexure- A1 final report on the allegation that when the marriage of first respondent with the first accused wife was subsisting, she married the second accused/petitioner and thereby committed offences under Sections 494 and 109 read with Section 34 of Indian Penal Code. When the case was pending before the learned Magistrate, a petition was filed jointly by the first respondent and the first accused stating that they have settled the dispute and have decided to separate and therefore the case is to be removed form the list permitting compounding of the offence. Learned Magistrate as per order dated 7.11.2006 granted permission to compound the offence but refiled the case against the petitioner as C.C. No.983/2006. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case pending against the petitioner contending that when the offence as against the first accused is compounded and they have decided to dissolve the Crl.M.C. No.2720/08 2 marriage, continuing the proceedings as against the petitioner is an abuse of process of court. Though notice was served on the first respondent, he did not appear. 2. Learned Public Prosecutor was heard. There was no representation for the petitioner, 3. Section 494 of Indian Penal Code provides for punishment for marrying again during the life time of the husband or wife. Under the Section who ever having a husband or wife, in any case for which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with the imprisonment of either descriptive for a term which may extend up to 7 years and shall also be liable for payment. The offence under Section 494 is non-cognizable and is also compoundable. Though the offence under Section 109 of Indian Penal Code is also alleged, it is only for abetting commission of the offence under Section 494. An offence under Section 494 is only a non cognizable offence, the learned Magistrate could not have taken cognizance of the offence on a final report under Section 173 (2) of Code of Criminal Procedure. In such circumstances, on that ground itself, the Crl.M.C. No.2720/08 3 proceedings before the learned Magistrate is liable to be quashed. 4. Added to this, the joint statement filed by the first respondent defacto complainant with the first accused, who allegedly married the petitioner during the subsistence of her marriage with the first respondent, establishes that they have decided to dissolve the marriage and also compounded the offences. An offence under Section 494 is compoundable with the leave of the court, learned Magistrate has already granted the leave also. 5. In such circumstances, when first accused who married the petitioner allegedly, during the subsistence of her legal marriage with the first respondent, was settled by the first respondent, it is not in the interest or justice to continue the proceedings as against the second accused. Petition is allowed. C.C. No.983/2006 on the file of Judicial First Class Magistrate-II, Cherthala is quashed. M.SASIDHARAN NAMBIAR (JUDGE) vps Crl.M.C. No.2720/08 4 M.SASIDHARAN NAMBIAR (JUDGE) vps Crl.M.C. No.2720/08 5