Allowed

Bindu John v. State of Kerala

Kerala HC19 Nov 2021Crl.MC/3874/2018

Case brief

AI extract

What is this about?

The Court allowed a Criminal Miscellaneous Petition filed by the 2nd accused against a private complaint involving allegations of bigamy and mental harassment. The Court quashed proceedings against the petitioner as the complaint failed to allege specific acts of threat or abuse by her, precluding implication under Section 34 IPC.

What did the court decide?

Quashed the pending criminal proceedings (CC No. 1473/2016) as against the 2nd accused petitioner.

Bindu John Vs State of Kerala — Kerala HC (2021) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943

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CRL.MC NO. 3874 OF 2018

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CC 1473/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - V,
THIRUVANANTHAPURAM

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PETITIONER/ACCUSED No.2:

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BINDU JOHN @ BINDU,
AGED 40 YEARS, ST.GITS COLLEGE OF ENGINEERING,
PATHAMMUTTAM, KOTTAYAM.

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BY ADVS.

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SRI.V.JOHN SEBASTIAN RALPH
SRI.B.DEEPAK
SMT.P.V.DENCY
SRI.K.J.JOSEPH ERNAKULAM
SRI.V.JOHN THOMAS

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RESPONDENTS/STATE/COMPLAINANT:

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1STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.

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2 BINDU THOMAS AGED 40 YEARS, D/O CHINAMMA THOMAS, SRUTHINILAYAM, CONVENT ROAD, NALANCHIRA,THIRUVANANTHAPURAM-695004.

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BY ADV

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SRI.BLAZE K.JOSE

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PP-SRI.SUDHEER GOPALAKRISHNAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 3874 OF 2018

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ORDER

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The petitioner is the 2^nd accused in C.C No.1473 of 2016 on the

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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 2^nd respondent.

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The factual background of the case is as follows; the de facto complainant is the wife of the 1^st 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 2^nd respondent, on the allegation that, the 1^st accused is living with the petitioner herein as husband and wife, while the marriage between the 2^nd respondent and the 1^st accused is subsisting. It was also alleged that, the 1^st accused as instructed by the petitioner/ 2^nd accused attempted to take away the children of the 2^nd respondent. In such circumstances, the 2^nd 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

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CRL.MC NO. 3874 OF 2018

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threaten them by using abusive words. According to the 2^nd respondent, the aforesaid acts are attracting offence under Sections 494, 506(ii), 294 read with Section 34 of Indian Penal Code.

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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.

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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.

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The learned counsel for the petitioner contends that the

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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

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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

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CRL.MC NO. 3874 OF 2018

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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 1^st accused with the 2^nd 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.

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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 1^st accused alone. In such circumstances, the petitioner herein cannot be implicated for the said offence.

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The aforesaid contention is seriously opposed by learned

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counsel for the 2^nd 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 2^nd respondent, the offences would get attracted.

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On examining the aforesaid rival contentions, it can be seen

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CRL.MC NO. 3874 OF 2018

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that the specific allegations with regard to the allegations relating to the

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aforesaid offences are made in paragraph 4 of Annexure A1 complaint which reads as follows:

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“4. രണ്ടാം പ്രതിയുടെ� ആദ്യവിവാഹം വേവർടെ�ടുത്താടെത യും വാദിയും ഒന്നാം പ്രതിയുമായുള്ള വിവാഹം വേവർടെ�ടുത്താടെതയും ഒന്നാം പ്രതി രണ്ടാം പ്രതിവേ�ാടെ�ാ�ം നി�മരഹിതമാ�ി ഭാര്യാഭർത്താക്കന്മാരാ�ി കഴിഞ്ഞുവരുന്നതാകുന്നു. കൂ�ാടെത പ്രതികൾ അ�ിയ്ക്ക�ി വാദി താമസിക്കുന്ന വീട്ടിൽ വന ് ന ബലാൽക്കാരമാ�ി താമസിക്കുവാൻ ശ്രമിച്ചു വരികയും ഒന്നാം പ്രതി വാദിവേ�ാ�് എ�ീ “പുണ്ടച്ചിവേമാടെ:" ഞങ്ങളുടെ� വീട്ടിൽ നിന്നും മര്യാദയ ് ക്ക ഇറങ്ങ�ി എന്നും രണ്ടാം പ്രതിയും ഞാനും കുട്ടിയും ജീവിവേക്കണ്ട വീ�ാടെC�ി ടെതണ്ടി എന്നും വി:ിച ് ച അസഭ്യം പറയുകയും വാദിയുടെ� സാന്നിധ്യത്തിൽ വാദിയുടെ� വീട്ടിൽ ഒന്നും രണ്ടും പ്രതികൾ ഇവേ�ാൾ ജനിച്ച കുട്ടിടെ�യും കൂട്ടി വാദിയുടെ� അനുവാദവേമാ സമ്മതവേമാ കൂ�ാടെത ഗുണ്ടാ�ിസത്തിലൂടെ� �ി വീട്ടിൽ താമസിക്കCടെമന്ന നിർബന്ധവേത്താടു കൂ�ി ഒന്നാം പ്രതി വാദിടെ� ഭീഷCിടെ�ടുത്തി വരുന്നതുമാകുന്നു. ആ�തിൽ വച ് ച പ്രതികളുടെ� പ്രവർത്തി ഇൻഡ്യൻ ശിക്ഷാനി�മം 494, 506(ii), 294b and r|w 34 പ്രകാരം കുറ്റവും ശിക്ഷാർഹവുമാകുന്നു.”

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On going through the contents of the same it can be seen that

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the specific allegations of threat and using abusive words were allegedly made by the 1^st 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 2^nd 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

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CRL.MC NO. 3874 OF 2018

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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 1^st 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.

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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

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proceedings against the 1^st accused can be continued.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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SCS

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CRL.MC NO. 3874 OF 2018

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APPENDIX OF CRL.MC 3874/2018

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PETITIONER ANNEXURE
ANNEXURE 1TRUE COPY OF THE COMPLAINT IN C.C NO.1473
OF 2016 ON THE FILE OF JFCM V AT
TRIVANDRUM.

Bindu John v. State of Kerala

Case brief

What is this about?

What did the court decide?

Bindu John v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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