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(2015) 432 KLW 869 - Taj Abubeker Vs. State of Kerala [Bigamy]

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(2015) 432 KLW 869

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T.RAVIKUMAR, J.

Crl.M.C No. 2311 of 2012

Dated this the 29th day of September, 2014

IN CC 208/2010 of JUDICIAL FIRST CLASS MAGISTRATE - II, MAVELIKKARA CRIME NO. 600/2009 OF NOORANADU POLICE STATION , ALAPPUZHA 

PETITIONER(S)/3RD ACCUSED

TAJ ABUBEKER, W/O.ABUBEKER, CHENTHALAKUNNEL HOUSE, PERUMBANACHI.PO CHANGANACHERRY. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.T.M.BINITHA 

RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT

1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE SUB INSPECTOR OF POLICE NOORANADU.P.O, ALAPPUZHA-690504.

2. BASHEER, S/O.THAMBI RAWTHER, ARIYADU PADEETHATHIL CHUNAKARA SOUTH, CHUNAKARA.P.O, ALAPPUZHA-690534. BY PUBLIC PROSECUTOR SMT.V.H.JASMINE 

ORDER 

This is a petition under 

Section 482 of the Code of Criminal Procedure 

filed by the third accused in C.C.No.208/2010 on the files of the court of the Judicial First Class Magistrate-II, Mavelikkara seeking quashment of Annexure- A6 complaint and Annexure - A1 final report in the said Calender Case. The said Calender Case arises from Crime No.600/09 of Nooranad Police station. The second respondent herein is the defacto complainant and he filed C.M.P.No.3480/2009 alleging commission of offences punishable under sections 415, 417, 511 of 495, r/w section 34 of the Indian Penal Code against the petitioner herein, her husband and son. In fact, her son is the first accused and her husband is the second accused, therein. C.M.P.No.3480/2009 was forwarded under section 156(3) of the Code of Criminal Procedure (for short Cr.P.C.). for investigation and Crime No.600/2010 was thereupon registered at Nooranad Police Station. After completion of investigation Annexure-A1 final report was laid alleging commission of offences punishable under 

Sections 415, 417, 511 of 495 and r/w section 34 of the Indian Penal Code 

against the petitioner and her husband and son. The contention of the petitioner is that even if all the allegations raised against the petitioner is taken in their entirety they would not constitute any offence punishable under sections 415, 417, 511 of 495, r/w section 34 of the Indian Penal Code. It is the contention that the investigating officer had not collected any evidence to the effect that the first accused had married earlier and got a living spouse and it is despite the knowledge about such marriage that accused Nos.2 and 3 had arranged the marriage of the first accused with the daughter of the defacto complainant. In short, according to the petitioner, there is absolutely no material in Annexure-A1 final report and the documents filed along with it to make out a prima facie case that the petitioner committed or cheated or attempted for a contract of marriage for her son concealing the former marriage. It is the further contention that since there was no earlier marriage between the first accused with any other woman, there can be no question of commission of bigamy by her son with concealment of former marriage from the second respondent's daughter during the lifetime of his wife and therefore, no offence under section 495, IPC would be attracted or even an attempt to commit any such offence would not be attracted on the face of such materials. There is no allegation in Annexure-A6 complaint or in Annexure-A1 final report that the petitioner/ the third accused had induced the complainant to deliver any property to herself or to the other accused or to the effect that she had retained any property of the complainant so as to cause damage or harm to the complainant. It is in the wake of such contentions that the captioned petition has been filed with the aforementioned prayers.

2. I have heard the learned counsel for the petitioner as also the learned Public Prosecutor.

3. In the context of the contentions, as aforesaid, it is only apposite to refer firstly to section 415, IPC. It reads thus:-

415 Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”

A bare perusal of the aforequoted section would reveal that apart from the circumstances cited by the petitioner certain other circumstances would also attract the offence under section 415, IPC. In case a person intentionally induces the person deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or likely to cause damage or harm to that person in body, mind, reputation or property it would also be sufficient to attract the said offence. In the said circumstances the petitioner cannot be heard to contend that in the absence of an allegation in Annexure-A6 complaint or in Annexure- A1 final report that the accused had induced the complainant to deliver any property to them or they had retained any property of the complainant and thereby caused damage or harm to the complainant an allegation of the offence under section 415, IPC would not lie against her. In otherwords, the definition of cheating under section 415, IPC would reveal that it set forth two separate classes of acts which the person deceived may be induced to do. The first, of course, would take in class of acts referred to by the petitioner herein. However, the other class of acts set forth in the section would take in any act or omission viz., the doing or omitting to do anything, which the person deceived would not do or omit to do if he were not so deceived. True that, in order to constitute the said offence, as regards the first class of acts the inducement must be fraudulent or dishonest and as relates the other class of acts the inducement must be intentional. Evidently, in the instant case, the allegation in Annexure-A6 complaint as also commission of offence which is alleged in Annexure-A1 final report are to the effect that concealing the fact that the first accused, the son of the petitioner and the second accused married one Roshmi attempted to fix the marriage of the first accused with the daughter of the second respondent, the defacto complainant and in that regard induced and made them conduct engagement in the house of the second respondent and decided to solemnize the marriage on 6.12.2009. Going by the allegations, after fixing the said marriage invitation cards were got printed and the second respondent had invited his kith and kins for the marriage. For conducting the marriage Vipanchika Auditorium at Charumoodu was also booked. Advance booking of vehicles and arrangement for catering were also made. As per the complaint, it is thereafter that the second respondent came to know that the first accused got a living spouse by name Roshmi who originally belonged to Christianity and embraced Islam solely to contract the marriage with the first accused. The gist of the allegation in Annexure-A6 complaint is to the effect that upon getting knowledge about such a marriage he lodged a complaint with the Nooranad police and thereafter contacted the said Roshmi and got ascertained the truth of the said allegations. It is in the said circumstances, in Annexure-A6 complaint he raised the contention of the commission of the aforesaid offences against the petitioner, her husband and son.

4. I have already adverted to the facts that ultimately culminated in registration of Crime No.600/2009 of the Nooranad Police Station and laying of Annexure-A1 final report. Evidently, after laying of Annexure-A1 final report cognizance of the aforesaid offences was taken and it was taken on file and was numbered as C.C.No.208/2010. The core contention of the petitioner, who is the third accused in the aforesaid Calender Case is that she is an innocent house wife and she has been put to face the trauma of a criminal trial. Going by the allegations in Annexure-A6 complaint and the charge in Annexure-A1 final report the marriage of the first accused, who is the son of the petitioner and the second accused, was earlier conducted at Bahrin in the year, 2008 with the aforesaid Roshmi and after such marriage the first accused and Roshmi were living as husband and wife and it is during the subsistence of the said earlier marriage that concealing the said aspect the accused have got fixed the marriage of the daughter of the second respondent/the defacto complainant with the first accused. I have already referred to the position of law to attract an offence under section 415, IPC. Section 417, IPC only provides the punishment for cheating. Section 495, IPC is the aggravated form of offence under section 494 viz., marrying again during life time of husband or wife. This section provides a higher punishment and it applies where the offence under section 494, IPC is committed with concealment of former marriage from the person with whom subsequent marriage is contracted. It is to be noted under the Code no express provision has been made to punish the attempt to commit the offence under section 495, IPC and obviously, an attempt to commit a crime means, though not defined under the Code, an act done with, intention to commit that particular crime. It is to be noted that it certainly requires an act more than mere preparation. In the decision in 

Abhayanand Mishra v. State of Bihar reported in AIR 1961 SC 1698 

the Hon'ble Apex Court held:-

“A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence”. 

A careful scanning of section 511 would reveal that it applies when the following ingredients are present:-

(1) There must be an attempt to commit an offence 

(2) such an offence must be one punishable under the IPC with imprisonment; and 

(3) The accused, in that attempt, must have done an act towards the commission of an offence. 

In 

Pankajkumar v. State of Maharashtra and others reported in 2008 Crl. LJ 3944 (SC) 

the Hon'ble Apex Court observed that the scope and ambit of powers of the High Court enunciated and reiterated in a series of decisions and the circumstances under which the High Court can exercise jurisdiction in quashing proceedings had been enumerated and hence held that it would be suffice to state that though the powers possessed by the High Courts under section 482, Cr.P.C are very wide such powers should be exercised only in appropriate cases, ex debitio justitiae to do real and substantial justice for the administration of which alone the courts exist. It was also held that the inherent powers do not confer any arbitrary jurisdiction on the High Court to act according to whim and caprice and the powers had to be exercised sparingly, with circumspection and in the rarest of rare cases where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed. There can be no doubt with respect to the position that sifting of evidence is not permissible in this proceedings. In the facts and circumstances of the case and also in view of the materials on record this Court will not be justified in holding that the materials available are such that even if unrebutted they would not make out a case whatsoever so as to say it is groundless. In the light of the allegations referred to hereinbefore made by the second respondent in Annexure-A6 complaint and the final report laid as Annexure-A1 I do not think that this Court will be justified in holding that the allegations therein would not satisfy the ingredients of the offences alleged, and certainly it is for the prosecution to establish the same. I may hasten to add that I have not made any observation with respect to the merits of the case. In the said circumstances I am of the view that this is not a fit case for invoking the power under section 482, Cr.P.C to quash Annexure-A1 final report and to terminate the proceedings pending before the court of the Judicial First Class Magistrate-II, Mavelikkara in C.C.No.208/2010. In that view of the matter this petition is liable to fail and accordingly it is dismissed. 

Sd/- C.T.RAVIKUMAR,JUDGE. 

dlk

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