IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 Crl.MC.No. 2718 of 2011() ------------------------- CMP.5459/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... PETITIONER(S): ACCUSED ---------------------- 1. RATHEESH.P,S/O.PUSHPARAJAN,KARUMVILA VEEDU,THADIKKADU.P.O,THEVARTHOTTOM,ANCHAL, KOLLAM DISTRICT. NOW RESIDING AT ELLUVILA MELA VEEDU,TC.11/2259,NALANCHIRA,THIRUVANANTHAPURAM. 2. THANKAMONY,KARUMVILA VEEDU,THADIKKADU, THEVARTHOTTAM,KOLLAM DISTRICT. BY ADV. SRI.T.SREEKANTAN RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. ANJU.A,ELLUVILA MELA PUTHEN VEEDU, TC.11/2259,NALACHIRA,THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI. JAYASURYA ADV. SMT.MINI.V.A. FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2718 of 2011() APPENDIX PETITIONERS EXHIBITS ANNEXURE A: TRUE COPY OF THE F.I.R DT. 6.8.2010 OF CRIME NO. 467/2010 REGISTERED AT SREEKARYAM POLICE STATION ANNEXURE A(a): THE ENGLISH TRANSLATION OF THE F.I.R. OF CRIME NO. 467/2010 REGISTERED AT SREEKARYAM POLICE STATION ANNEXURE B: TRUE COPY OF THE AGREEMENT DT. 11.4.2011 REACHED BY THE MOTHER OF THE 1ST PETITIONER WITH THE MOTHER OF THE 2ND RESPONDENT ANNEXURE B(a): ENGLISH TRANSLATION OF ANNEXURE B ANEEXURE C: TRUE COPY OF THE MARRIAGE CERTIFICATE DT. 12.6.2011 ISSUED BY THE UDIYANNOOR SIVAKSHETRA TRUST, NALANCHIRA, THIRUVANANTHAPURAM ANNEXURE D: COPY OF THE CERTIFICATE OF MARRIAGE DT. 18.6.2011 ISSUED BY MARRIAGE OFFICER, PATTOM, THIRUVANANTHAPURAM ANNEXURE E: COPY OF THE MEDICAL CERTIFICATES DT. 16.7.2011 BY DR. JYOTHILEKSHMI, DEVI HOMOEO CLINIC, STATION KADAVU, KAZHAKUTTOOM, THIRUVANANTHAPURAM ANNEXURE F: COPY OF THE MEDICAL CERTIFICATES DT. 26.7.2011 BY DR. JYOTHILEKSHMI, DEVIHOMOEO CLINIC STATION KADAVU, KAZHAKKUTTOM, THIRUVANANTHAPURAM ANNEXURE G: COPY OF THE REPRESENTATION DT. NIL SUBMITTED BY THE 2ND RESPONDENT BEFORE THE SPECIAL SUPERINTENDENT OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM ANNEXURE G(a): ENGLISH TRANSLATION OF ANNEXURE G ANNEXURE H: COPY OF THE REPRESENTATION DT. NIL SUBMITTED BY THE 2ND RESPONDENT BEFORE THE INSPECTOR GENERAL OF POLICE, TRIVANDRUM RANGE ANNEXURE H(a): ENGLISH TRANSLATION OF ANNEXURE H ANNEXURE I : COPY OF THE REPRESENTATION DT. 16.7.2011 SUBMITTED BY THE 2NDRESPONDENT BEFORE THE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM ANNEXURE I(a): ENGLISH TRANSLATION OF ANNEXURE I ANNEXURE J: COPY OF THE REPRESENTATION DT. 10.8.2011 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE ASSISTANT COMMISSIONER OF POLICE, DISTRICT CRIME RECORDS BUREAU, THIRUVANANTHAPURAM TRUE COPY P.A TO JUDGE jma N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C No. 2718 of 2011 ---------------------------------------------------- Dated this the 4th day of October, 2011 ORDER As directed by another Bench of this Court, the statement of the defacto complainant and the two accused were recorded by the learned Magistrate. The defacto complainant was represented by her counsel. According to the learned counsel appearing for both sides no offence under section 376 IPC is made out. It is the definite case of the complainant that she and the first accused were in love and were living together as husband and wife and they were having sexual intercourse. It is pointed out by the learned counsel for the accused that in the light of the admission made by the complainant that she was staying along with the first accused and was having sexual intercourse, with her full consent it cannot attract an offence under Section 376 IPC. It is also submitted that the defacto complainant was married by the first accused as per the Special Marriage Act and thereafter the marriage was registered as per the Customary rites also. Since another Bench had directed recording of Crl.M.C.No.2718/2011 : 2 : statement of the defacto complainant it cannot be varied or modified. Therefore, in the background of these facts, I hold that the offence under Section 376 IPC is not attracted. The allegation against other accused is that they had committed impersonation and also cheated the complainant by taking her gold ornaments, money etc. The statement would show that the allegations so made are not true and that she has no grievance against the other accused also. The statement of the defacto complainant was recorded by the Magistrate as directed by another Bench of this Court. In the light of the statement no prosecution can be had against the petitioners. It is also stated that the defacto complainant is not a member of SC/ST and as such the offences under Sectio 3(1)(xi) of SC/ST (PA) Act is also not attracted. In the light of what is stated above this Criminal M.C is allowed. Further proceedings in Crime No. 467/2010 of Sreekaryam Police Station is quashed. N.K. BALAKRISHNAN, JUDGE jma