Kerala High Court
Bindu John vs State Of Kerala on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
CRL.MC NO. 3874 OF 2018
CC 1473/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - V,
THIRUVANANTHAPURAM
PETITIONER/ACCUSED No.2:
BINDU JOHN @ BINDU,
AGED 40 YEARS, ST.GITS COLLEGE OF ENGINEERING,
PATHAMMUTTAM, KOTTAYAM.
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SRI.B.DEEPAK
SMT.P.V.DENCY
SRI.K.J.JOSEPH ERNAKULAM
SRI.V.JOHN THOMAS
RESPONDENTS/STATE/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
2 BINDU THOMAS
AGED 40 YEARS, D/O CHINAMMA THOMAS,
SRUTHINILAYAM, CONVENT ROAD,
NALANCHIRA,THIRUVANANTHAPURAM-695004.
BY ADV
SRI.BLAZE K.JOSE
PP-SRI.SUDHEER GOPALAKRISHNAN
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 3874 OF 2018
2
ORDER
The petitioner is the 2nd accused in C.C No.1473 of 2016 on the files of the Judicial First Class Magistrate Court - V, Thiruvananthapuram. The aforesaid case was registered on the basis of Annexure I private complaint submitted by the 2nd respondent.
2. The factual background of the case is as follows; the de facto complainant is the wife of the 1st accused. There are certain matrimonial disputes between the de facto complainant and the 1 st accused and proceedings of divorce are also pending before the court. The aforesaid complaint was submitted by the 2nd respondent, on the allegation that, the 1st accused is living with the petitioner herein as husband and wife, while the marriage between the 2nd respondent and the 1st accused is subsisting. It was also alleged that, the 1st accused as instructed by the petitioner/ 2nd accused attempted to take away the children of the 2 nd respondent. In such circumstances, the 2nd respondent filed M.C.No.30/2012 before the Judicial First Class of Magistrate, Thiruvananthapuram invoking the provisions under the Protection of Women From Domestic Violence Act, which proceedings is now pending. Further allegation is that, the 1 st accused used to trespass into the residence of the 2 nd respondent and CRL.MC NO. 3874 OF 2018 3 threaten them by using abusive words. According to the 2nd respondent, the aforesaid acts are attracting offence under Sections 494, 506(ii), 294 read with Section 34 of Indian Penal Code.
3. The case of the petitioner is that even if the entire allegations as contained Annexure A1 complaint are taken in its entirety for its face value, no offences as alleged therein are constituted as against the petitioner. Thus she prays for invoking powers of this Court under Section 482 of Cr.P.C. and to quash the said proceedings.
4. Heard Sri.John S. Ralph, learned counsel for the petitioner, Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the 1 st respondent and Sri.Blaze K. Jose, learned counsel appearing for the 2 nd respondent.
5. The learned counsel for the petitioner contends that the offence under Section 494 cannot get attracted as against the petitioner herein. It is pointed out that as per Section 494, the offence is pertaining to the performance of marriage while the earlier marriage with another person is subsisting. According to the learned counsel for the petitioner, the aforesaid provision is applicable only in respect of the person who is a party to both the marriages, namely the marriage which is a subject CRL.MC NO. 3874 OF 2018 4 matter of the offence and the earlier marriage which is subsisting with the complainant. In this case, the alleged subsisting marriage is that of the 1st accused with the 2nd respondent herein and therefore, the aforesaid offence cannot be attracted as against the petitioner. However, it was pointed out that the learned Magistrate has not taken cognizance for the offence under Section 494 and hence it is not necessary to consider the aforesaid contention.
6. With regard to the remaining offences under Section 506 (ii) and 294(b) read with Section 34 IPC, it was contended that the specific allegations which constitute the aforesaid offences are only attributed against the 1st accused alone. In such circumstances, the petitioner herein cannot be implicated for the said offence.
7. The aforesaid contention is seriously opposed by learned counsel for the 2nd respondent. It was pointed out that as per the complainant, the acts committed by the 1 st petitioner was in furtherance of a common intention and Section 34 is also incorporated. In such circumstance, even in the absence of any specific overt act on the part of the 2nd respondent, the offences would get attracted.
8. On examining the aforesaid rival contentions, it can be seen CRL.MC NO. 3874 OF 2018 5 that the specific allegations with regard to the allegations relating to the aforesaid offences are made in paragraph 4 of Annexure A1 complaint which reads as follows:
"4. രണ്ടാം പ്രതിയുടെ ആദ്യവിവാഹം വേർപ്പെടുത്താതെ യും വാദിയും ഒന്നാം പ്രതിയുമായുള്ള വിവാഹം വേർപ്പെടുത്താതെയും ഒന്നാം പ്രതി രണ്ടാം പ്രതിയോടൊപ്പം നിയമരഹിതമായി ഭാര്യാഭർത്താക്കന്മാരായി കഴിഞ്ഞുവരുന്നതാകുന്നു. കൂടാതെ പ്രതികൾ അടിയ്ക്കടി വാദി താമസിക്കുന്ന വീട്ടിൽ വന്ന് ബലാൽക്കാരമായി താമസിക്കുവാൻ ശ്രമിച്ചു വരികയും ഒന്നാം പ്രതി വാദിയോട് എടീ "പുണ്ടച്ചിമോളെ" ഞങ്ങളുടെ വീട്ടിൽ നിന്നും മര്യാദയ്ക്ക് ഇറങ്ങടി എന്നും രണ്ടാം പ്രതിയും ഞാനും കുട്ടിയും ജീവിക്കേണ്ട വീടാണെടി തെണ്ടി എന്നും വിളിച്ച് അസഭ്യം പറയുകയും വാദിയുടെ സാന്നിധ്യത്തിൽ വാദിയുടെ വീട്ടിൽ ഒന്നും രണ്ടും പ്രതികൾ ഇപ്പോൾ ജനിച്ച കുട്ടിയെയും കൂട്ടി വാദിയുടെ അനുവാദമോ സമ്മതമോ കൂടാതെ ഗുണ്ടായിസത്തിലൂടെ ടി വീട്ടിൽ താമസിക്കണമെന്ന നിർബന്ധത്തോടു കൂടി ഒന്നാം പ്രതി വാദിയെ ഭീഷണിപ്പെടുത്തി വരുന്നതുമാകുന്നു. ആയതിൽ വച്ച് പ്രതികളുടെ പ്രവർത്തി ഇൻഡ്യൻ ശിക്ഷാനിയമം 494, 506(ii), 294b and r|w 34 പ്രകാരം കുറ്റവും ശിക്ഷാർഹവുമാകുന്നു."
9. On going through the contents of the same it can be seen that the specific allegations of threat and using abusive words were allegedly made by the 1st accused alone. Even though it is mentioned that the petitioner also used to come to the place of residence of the 2 nd respondent, there is absolutely no allegation in Annexure A1 to the effect that she had placed any such threats or used any abusive words against the 2nd respondent. It is true that Section 34 is also incorporated in the said complaint. In my view, merely because of the reason that Section 34 CRL.MC NO. 3874 OF 2018 6 is also mentioned, it cannot be concluded that the petitioner is also to be implicated for the other offences with the aid of the said provision. The complaint should contain averments indicating commission of the offences in furtherance of a common intention. However, a careful scrutiny of the contents of paragraph 4 of Annexure A1, it cannot be concluded that a case of common intention is made out. In such circumstances, as the alleged acts were stated to have been committed by the 1st accused alone as per the averments made in Annexure A1, the petitioner cannot be implicated for the offences mentioned therein. In such circumstances, the entire proceedings as against the petitioner is an abuse of process of law.
Accordingly, this Crl.M.C. is allowed. The complaint which is pending as CC No.1473/2016 before the Judicial First Class Magistrate Court - V, Thiruvananthapuram and all further proceedings pursuant thereto are hereby quashed as against the petitioner herein. The proceedings against the 1st accused can be continued.
Sd/-
ZIYAD RAHMAN A.A. JUDGE SCS CRL.MC NO. 3874 OF 2018 7 APPENDIX OF CRL.MC 3874/2018 PETITIONER ANNEXURE ANNEXURE 1 TRUE COPY OF THE COMPLAINT IN C.C NO.1473 OF 2016 ON THE FILE OF JFCM V AT TRIVANDRUM.