Mathew Franco vs State of Kerala and The Excise Inspector

V. Ramkumar, J.—Petitioners are accused 2 and 3 in Crime No. 157/2008 of Vellikulangara Police Station. First respondent is the defacto complainant. First respondent filed Annexure-A1 complaint against the first accused, the son and petitioners/accused 2 and 3, his parents, alleging that they committed offences under Sections 376 and 493 read with Section 34 of Indian Penal Code. The complaint was sent to the police for investigation u/s 156(3) of Code of Criminal Procedure. Annexure-A2 FIR was registered and the crime is being investigated. This petition is filed u/s 482 of Code of Criminal Procedure to quash the proceedings as against the petitioners contending that though the case is registered for the offences u/s 376 and 493 read with Section 34 of Indian Penal Code, later, on investigation, it was found that first accused had married the first respondent at Coimbatore and the offence attracted is an offence u/s 498A of Indian Penal Code and on the allegations in Annexure-A1 complaint, no offence u/s 493 is attracted against the petitioners and therefore, it is to be quashed.

Second respondent filed a statement stating that after registration of the case for offences under Sections 376 and 493 read with Section 34 of Indian Penal Code, on the basis of investigation, a report was filed by the Investigating Officer before Judicial First Class Magistrate''s Court, Chalakkudy deleting offences under Sections 376 and 493 and incorporating an offence u/s 498A read with Section 34 of Indian penal Code and investigation in the case is in progress.

Learned Counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard.

The argument of the learned Counsel appearing for the petitioners is that when investigation revealed that only offence involved is u/s 498A of Indian Penal Code and allegations in Annexure-A1 complaint do not show the ingredients of an offence u/s 498A of Indian Penal Code as against the petitioners, the proceedings as against them is to be quashed. It was argued that Annexure-A1 complaint does not contain any allegation that there was a demand for dowry and much less, at the instance of the petitioners and in such circumstances, the case as against them is to be quashed.

Learned Counsel appearing for the first respondent pointed that first respondent belongs to Christian community and after coming into contact with the first respondent, first accused made her to believe that he will marry her and took her to Thrissur and from there to Coimbatore and under the guise that a marriage is being performed under the Special Marriage Act, she was taken to a temple at Coimbatore and a ceremony was performed, which will not constitute a legal marriage and therefore, an offence u/s 493 would, definitely, be attracted and first respondent filed Crl.M.C. No. 2339/2009 for a direction to conduct proper investigation in the case and in such circumstances, the case cannot be quashed as sought for. Learned Counsel also pointed out that even if an offence u/s 498A of Indian Penal Code is attracted, there are sufficient allegations in the complaint as against the petitioners and therefore, in any event, the case cannot be quashed as sought for.

On hearing the learned Counsel appearing for the petitioners and first respondent, I find no valid reason to quash the case as against the petitioners. The question whether an offence u/s 493 of Indian Penal Code is attracted or not is to be decided in this petition, as the case is under investigation. If the grievance of the first respondent is that there is no proper investigation in the case, as held by the Apex Court in Sakiri Vasu v. State of U.P. 2008 (1) KLT 724 (SC), he is at liberty to approach the learned Magistrate u/s 156(3) of Code of Criminal Procedure for appropriate direction.

Learned Public Prosecutor pointed out that as held by the Apex Court in Subbharao v. State of A.P. 2009 (2) KLT 531 (SC), to attract an offence u/s 498A of Indian Penal Code, a legal marriage is not an absolute necessity and in such circumstances, for the reason that there is no legal marriage, it cannot be held that an offence u/s 498A is attracted. If an offence u/s 498A is attracted, it cannot be said that there are no sufficient allegations as against the petitioners in Annexure-A1 complaint, as in paragraph 3 of the complaint, there are specific allegations as against the petitioners regarding cruelty as provided u/s 498A of Indian Penal Code. In such circumstances, investigation cannot be quashed as sought for by the petitioners. Learned Counsel appearing for the petitioners then submitted that second petitioner/third accused is yet to surrender and there may be a direction to the Magistrate to grant bail to her. Second petitioner had already approached this Court for anticipatory bail u/s 438 of Code of Criminal Procedure unsuccessfully. In such circumstances, she is not entitled to get the relief as sought for. It is up to the second petitioner to surrender before the Magistrate and seek regular bail.

Petition is disposed.