IMPORTANT POINTS:
The cognizance taken on the basis of the police report is not correct since there is total bar under Section 198 Cr.P.C. in taking cognizance on the basis of a police report relating to the offences under Chapter XX of IPC and the complaint filed for the offences under Chapter XX of IPC shall be by the aggrieved person-The offence under Section 494 IPC will not stand. The offence under Section 498-A IPC is alleged against the accused on the ground that during the subsistence of the marriage between the sister of the revision petitioner and the respondent/accused, he married another lady.

1. Respondents 1 and 2 in Crl. Appeal No. 617 of 2010 are the accused in C.C. No. 353 of 2007 on the file of the Judicial First Class Magistrate-II, Kannur for offences punishable under Sections 493, 494, 497, 418, 419, 498(A) r/w Section 34 IPC. Crl. R.P. No. 1007 of 2010 arises from C.C. No. 613 of 2005, which was filed on the basis of a complaint filed by the brother of the appellant. The parties are referred to as in Crl. Appeal No. 617 of 2010.

2. The appellant is the legally wedded wife of the first respondent and two children were born in that wedlock. During the subsistence of this marriage, he married the second respondent at Kadalayi Sree Krishna Temple by giving false name and address in order to conceal identity. On the basis of the complaint filed by the brother of the appellant, Crime No. 298 of 2005 was registered before the Valappattanam Police Station; but the final report was filed only against first respondent. Therefore, the appellant has filed the aforesaid complaint against both respondents 1 and 2 and their relatives. The learned Magistrate took cognizance only against respondents 1 and 2. Since both the cases were in respect of the same incident, the appellant filed a petition before the court below to exercise its powers under Section 210(2) of Cr.P.C. to club both the cases together.

3. The learned Magistrate, after enquiry, took the case on file against respondents 1 and 2 for the offences under Sections 419 and 494 IPC r/w Section 109 IPC respectively and discharge the other accused persons. On receipt of summons, respondents 1 and 2 appeared and were released on bail. During trial, PWs. 1 to 11 were examined and Exts.P1 and P2 were marked on behalf of the complainant. Charges were framed against respondents 1 and 2 and they pleaded not guilty to the charges framed against them. The learned Magistrate, after trial as per judgment dated 21.11.2009, acquitted respondents 1 and 2 on the ground that the offences alleged against them had not been proved.

4. The learned counsel for the appellant has contended that the court has acted illegally by violating the mandatory provision of Section 210(2) of Cr.P.C. in independently trying the police case and the complaint though both related to the same incident. According to the learned counsel, it is to be looked into whether respondents 1 and 2 had influenced the police and there was clear collusion between them. He has also contended that many important witnesses were not questioned or included in the police charge. The court below ought to have found that there were ample evidence to prove the second marriage. The findings of the court below that there was no sufficient evidence regarding the ceremony undergone by respondents 1 and 2 is unfounded and unsustainable. Therefore, the appellant prays for setting aside the order of acquittal of accused in C.C. No. 353 of 2007.

5. The appellant is the de facto complainant who has moved a petition under Sections 419 and 494 r/w Section 34 of IPC. In this context, it is pertinent to examine Section 494 of IPC reads thus:

“494. Marrying again during lifetime of husband or wife - Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

There is exception to the effect that the above Section does not extent to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequen