IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 21596 of 2010(Q) --------------------------------------- PETITIONER: ------------------- ANNIE, AGED 26 YEARS, D/O.DEVASSY, PARAKKAL HOUSE, KARIPPAKUNNU DESOM, PATTIKKADU P.O., PANANCHERY VILLAGE, THRISSUR DISTRICT. BY ADVS. SRI.A.X.VARGHESE, SRI.A.V.JOJO. RESPONDENTS: ------------------------ 1. THE DISTRICT SUPERINTENDENT OF POLICE, THRISSUR – 680 001. 2. THE SUB INSPECTOR OF POLICE, ANTHIKKAD POLICE STATION – 680 641. 3. BENSON BABU, S/O.BABU, VANDANAMTHADATHIL HOUSE, CITY GARDEN, PATTIKKAD P.O., PANANCHERY VILLAGE, THRISSUR, PIN: 680 652. R1 & R2 BY GOVT. PLEADER SRI. I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- W.P.C.NO.21596 OF 2010 --------------------------------------------- Dated 22nd October, 2010 JUDGMENT Writ petition is filed under Article 226 of Constitution of India for a direction to the first respondent to entrust investigation of Crime No.376/2008 of Anthikkad Police Station registered under Ext.P3 FIR, for the offence under Sections 493, 496 and 376 of Indian Penal Code on Ext.P2 complaint filed by the petitioner before Judicial First Class Magistrate's Court-II, Thrissur and sent for investigation under Section 156(3) of Code of Criminal Procedure. After completing investigation, Ext.P5 final report was submitted alleging that third respondent, accused, committed the offences under Section 493, 496 and 376 of Indian Penal Code. Wpc 21596/10 2 2. Learned counsel appearing for the petitioner and learned Government Pleader were heard. 3. Ext.P2 complaint itself reveals that petitioner was in love with third respondent. As family of both the parties were not agreeable for their marriage, they decided to marry each other without the consent of the family. They got married at Sree Chidambaram temple of Karamuk Sreenarayana Gupthasamajam at 12 a.m on 23/11/2007. Complaint also discloses that thereafter they lived together as husband and wife. Thereafter friends of third respondent, Linto and Joy came to their house on 23/1/2008 and 24/1/2008. On 25/1/2008 they reported that mother of the third respondent is ill and she expressed the wish to see him and therefore, along with the Wpc 21596/10 3 friends third respondent went out of the house. He did not return to the house. Based on the information furnished by the petitioner, Crime No.105/2008 of Peechi Police Station was registered under Ext.P1 FIR, on the caption man missing. The complaint also discloses that thereafter petitioner approached this Court by filing a habeas corpus petition and third respondent appeared and stated that he is not under illegal detention. Writ petition was therefore closed. It is thereafter the complaint was filed. 4. Argument of the learned counsel appearing for the petitioner is that even if, all offences are not attracted, offences under Sections 493 and 496 of Indian Penal Code would apply and therefore, further investigation is warranted. To attract an offence under Section Wpc 21596/10 4 493, there should be an allegation that third respondent by deceit caused the petitioner, who is not lawfully married to him, to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him. Complaint itself discloses that both the petitioner and third respondent were under the belief that by the ceremony undergone on 23/11/2007, they got lawfully married. There is no allegation that third respondent knew that it was not lawful marriage or that he had any dishonest intention to persuade petitioner to agree for that marriage with the knowledge that by deception he could thereby subject the petitioner to cohabit with him or to have sexual intercourse with him. Therefore, I cannot agree with the submission that an offence under Section 493 is attracted. So Wpc 21596/10 5 also, to attract an offence under Section 496, there should be an allegation that third respondent dishonestly or with fraudulent intention goes through the ceremony of being married, knowing that he is not thereby lawfully married. As stated earlier, there is no case for the petitioner that third respondent was having knowledge or any fraudulent intention that by the ceremony undergone on 23/11/2007, there will not be a legal marriage. In such circumstances, I find no reason to direct an investigation as sought for. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.