IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1559 of 2009()
1. D. RAMACHANDRA PILLAI, AGED 52 YEARS,
... Petitioner
Vs
1. STATE OF KERALA (CRIME NO.1064/2008 OF
... Respondent
For Petitioner :SRI.ALAN PAPALI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :26/05/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 1559 OF 2009
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Dated 26th May 2009
O R D E R
Petitioner is fourth accused in Crime
No.1064/2008 of Punalur police station, Kollam. He is
Sub Registrar of Punalur. On 13/8/2008 Jyothish and
Chithira gave notice of their intended marriage under
the Special Marriage Act, 1954. It was published in
the notice board, as evidenced by Annexure-1 copy of
that notice on 4/10/2008. After obtaining a
declaration made by the bride groom and bride in the
presence of the witnesses, marriage was solemnised and
Annexure-2 certificate was issued on the same day.
Later on 31/10/2008 along with her parents, Chithira
preferred Annexure-3 complaint producing copy of
Annexure-5 birth certificate obtained from the
Panchayat to show that her date of birth is 31/3/1991
and not as shown in the copy produced earlier.
Petitioner directed them to produce the original of
Annexure-5 and after verifying the original and
getting satisfied that the date of birth is not as
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stated originally, the marriage under Annexure-4
solemnised earlier was declared invalid on 31/10/2008.
Meanwhile, on 26/12/2008 finding that Chithira was
missing her father filed a complaint before Punalur
police which was registered as crime 1064/2008
evidenced by Annexure-6 FIR. Subsequently under
Annexure-7, the boy Jyothish and Annexure-8 his
relative Mani and under Annexure-9, the document writer
Rajendra Babu were implicated as accused 1 to 3.
2. In February 2009 the mother of Chithira
had filed a habeas corpus writ petition before this
court and by order dated 11/3/2009 the detinue was
given to the mother evidenced by Ext.A10 judgment.
On 21/3/2009 statement of Chithira was recorded in
crime 1064/2008. Annexure-2 statement was produced
before the Magistrate. Later under Annexure-13 report
dated 27/3/2009 petitioner was implicated as fourth
accused on the allegation that he failed to give
information which is bound to give and thereby
committed offence under Section 202 of Indian Penal
Code. This petition is filed under Section 482 of Code
of Criminal Procedure to quash the FIR as against the
petitioner contending that the allegation against him
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do not constitute an offence under Section 202 of
Indian Penal Code or any other offence and so it is to
be quashed.
3. Learned counsel appearing for petitioner
and learned Public Prosecutor were heard.
4. Learned counsel appearing for petitioner
pointed out that petitioner was implicated as accused
under Annexure-13, only on the allegation that he did
not furnish the information regarding the commission of
the offences which came to his knowledge and under
Section 202 of Indian Penal Code only if petitioner is
bound to inform the police about the information, he
could be punished for the offence and Section 39 of
Code of Criminal Procedure provides the details of the
offences of which a person has to give information and
none of the offences alleged in the case come within
the ambit of Section 39 of Code of Criminal Procedure
and therefore, even if allegation of the investigating
officer is accepted, it will not make out an offence
and therefore it is to be quashed.
5. Learned Public Prosecutor pointed out
that a copy of the birth certificate of Chithira was
forged and produced before him and even though copy
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of the original birth register along with Annexure-3
complaint was filed by Chithira and on verifying the
original certificate petitioner was satisfied that
there was forgery, petitioner did not inform the police
about the commission of the offence and therefore an
offence under Section 202 of Indian Penal Code is
committed and as the matter is under investigation,
there is no reason to interfere with the investigation
at the threshold. Learned Public Prosecutor submitted
that as it is at the initial state of investigation,
on investigation the real offence committed could be
fixed and therefore at this stage no interference be
made.
6. Section 202 of Indian Penal Code provides
that whoever knowing or having reason to believe that
an offence has been committed, intentionally omits to
give any information respecting that offence which he
is legally, bound to give, shall be punished for the
offence provided therein. Therefore, to invoke an
offence under Section 202, the person who did not
furnish the information must have a legal duty to
furnish that information and he intentionally omitted
to give that information in respect of the said
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offence then only an offence under Section 202 is
attracted. The question therefore is whether
petitioner in his capacity as Sub Registrar is bound
to give information regarding the commission of
offences involved in this case.
7. The case is now being investigating for
the offence under Sections 363, 465, 466, 471 and 202
read with Section 34 of Indian Penal Code. Section 39
of Code of Criminal Procedure provides the offences on
which public has to give information. Under sub Section
1 every person, aware of the commission of, or of the
intention of any other person to commit, any offence
punishable under any of the offences shown in clause
(i) to clause (xii)in the absence of reasonable
excuse, the burden of proving which excuse shall lie
upon that person, shall forthwith give information
to the nearest Magistrate or police officer of such
Commission or intention of conviction of the offence.
Therefore, unless the offences alleged come within
clause (i) to clause (xii) of sub Section 1 of Section
39, an offence under Section 202 of Indian Penal Code
is not attracted. None of the offences under Section
363, 465, 466, 471 of Indian Penal Code come within
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clause (i) to clause (xii) of sub Section 1 of
Section 39. Therefore, even if the allegation against
the petitioner is accepted as correct and proved, the
ingredients of an offence under Section 202 of Indian
Penal Code is not made out. The only allegation against
petitioner is commission of an offence under Section
202 of Indian Penal Code. In such circumstances, when
the allegations against petitioner even if are accepted
at their face value in their entirety, prima facie
do not constitute any offence alleged against
petitioner. The principles laid down by the Apex court
in (AIR 1992 SC 604) squarely applies to the facts.
Hence under Section 482 of Code of Criminal Procedure
the FIR is against petitioner is liable to be quashed.
Petition is allowed. Annexure A6 FIR in crime
1064/2008 of Punalur police station as against
petitioner is quashed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.