IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 Crl.MC.No. 2992 of 2009() ----------------------------------- CC.601/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... PETITIONER/ACCUSED --------------------------------- V.V. MIDHUN SINGH, 'KARUNYA', MANAVELI, THIRUPURAM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. MR.P.VIJAYASINGH RESPONDENTS/COMPLAINANTS ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SIJI, D/O.PUSHPAM, THIRUHRIDAYA MANDIRAM, THIRUPURAM, MULLUVILA P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 2992 OF 2009 ------------------------------------------ Dated 6th November 2009 O R D E R Petitioner is the accused in C.C.601/2002 on the file of Judicial First Class Magistrate–III, Neyyattinkara, now pending as L.P.24/2006, taken cognizance for the offence under Section 493 of Indian Penal Code on Annexure-A complaint after conducting an inquiry under Section 202 of Code of Criminal Procedure. This petition is filed under Section 482 of Code of Criminal Procedure, to quash the proceedings contending that learned Magistrate has not conducted a proper enquiry under Section 202 of Code of Criminal Procedure. It is contended that Annexure-A complaint was filed without any bonafides and falsely and first respondent without filing a petition before the police, filed Annexure-A complaint before the Magistrate directly and Magistrate without applying his mind as per Annexure-D proceedings, taken cognizance of the offence. It is contended that when there was no marriage, as the original document of Crmc 2992/09 2 marriage mentioned in the complaint was not filed, learned Magistrate should not have taken cognizance of the offence. It is also contended that second respondent did not prosecute O.P.94/2002 filed by her after getting a copy of objection filed by the petitioner and the allegations in the complaint are not correct. 2. Learned counsel appearing for the petitioner was heard. Learned counsel vehemently argued that learned Magistrate should not have taken cognizance of the offence and though it is alleged in the complaint that petitioner had taken second respondent to the Sub Registrar Office for registering the marriage, in fact petitioner was illegally confined and forcibly taken to Sub Registrar's office and got the document executed and registered and it was not voluntarily done and petitioner had no sexual contact with the second respondent and therefore, no offence under Section 493 of Indian Penal Code was committed. It is also argued that though cognizance was taken, as per order dated 8/10/2009, the order does not show that all the materials were considered by the learned Magistrate and instead, it only shows that prima facie a case has been found without disclosing all the Crmc 2992/09 3 materials and therefore, the order is illegal. Relying on the decision of this court in Kader v. State of Kerala (1999 (3) KLT 262) it is argued that an enquiry under Section 202 of Code of Criminal Procedure is not an empty formality and the order shows that learned Magistrate did not conduct proper enquiry and hence it is to be quashed. 3. Records produced by petitioner reveal that a man missing case was originally registered by Puvar police, on the complaint that second respondent lady is missing. Second respondent along with the petitioner were arrested from the house of the petitioner and produced before Judicial First Class Magistrate-III, Neyyattinkara. Annexure-E(1) statement of second respondent was recorded where she disclosed that she had gone to the house of petitioner on her own wishes voluntarily and she is aged 18 years and she intends to live with the petitioner and she had not married him and she is to be permitted to live according to her wishes. As seen from Annexure-E report learned Magistrate therefore released second respondent. On the same day Annexure-F registered agreement was entered into by the petitioner and second respondent and Crmc 2992/09 4 got it registered before Sub Registrar office, Neyyattinkara stating the they have been living as husband and wife and would thereafter live as husband and wife. True, the registered agreement to live husband and wife will not create a legal marriage. Learned counsel appearing for the petitioner submitted that second respondent had in fact reached the house of petitioner only on that morning and petitioner was taken to the Magistrate under the pre-text that second respondent is to be identified by him before the Magistrate and after the Magistrate released the second respondent, petitioner was forcibly taken to Sub Registrar office and got Annexure-F registered. 4. On the materials produced, it cannot be said that second respondent was not there on the previous night, when police took second respondent and petitioner in custody and produced them before the Magistrate and the marriage agreement entered into before the Sub Registrar office was not voluntarily. These are all facts which could be decided only on evidence. Though learned Magistrate did not write a speaking order, while taking cognizance of the offence, and issuing summons under Section 204 of Code of Crmc 2992/09 5 Criminal Procedure. Magistrate is not expected to write a detailed order as in the case of dismissal of the complaint under Section 203 of Code of Criminal Procedure. Annexure-D proceeding paper shows that learned Magistrate conducted an inquiry and statements of complainant and witnesses were recorded and an investigation under Section 202(1) of Code of Criminal Procedure was ordered and a report was obtained. It is after conducting detailed enquiry under Section 202 and finding a prima facie case Magistrate has taken cognizance of the offence. 5. On the materials it cannot be stated that the cognizance taken was not legal or proper as canvassed. In such circumstances, I find no reason to interfere with that order. Petitioner is at liberty to seek an order of discharge, raising all the contentions, under Section 245 of Code of Criminal Procedure, as necessarily the Magistrate has to record the evidence of second respondent and her witnesses in the presence of petitioner as provided under Section 244 and petitioner is at liberty to cross examine the witness, if so wishes. The Magistrate has to proceed under Section 246 of Code of Criminal Procedure by framing Crmc 2992/09 6 a charge only after hearing the petitioner and second respondent as provided under Section 245 of Code of Criminal Procedure . Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.