IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2992 of 2009()
1. V.V.MIDHUN SINGH,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. SIJI, D/O.PUSHPAM,
For Petitioner :SRI.P.VIJAYASINGH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/11/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 2992 OF 2009
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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
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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
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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
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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
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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
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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.