IMPORTANT POINT
The court affirmed that police can investigate non-cognizable offences alongside cognizable ones, emphasizing the need for careful scrutiny of complaints in family disputes.

ORDER :

(C.S. Dias, J.)

The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for an order of pre-arrest bail.

2. The petitioner is the first accused in Crime No.668/2024 of the Thrikkakara Police Station, Ernakulam, which is registered against three accused persons for allegedly committing the offences punishable under Sections 494 and 498-A of the Indian Penal Code ('IPC'). It is reported that during the pendency of this application, the offence under Section 377 of the IPC is also incorporated.

3. The essence of the prosecution case is that, the de-facto complainant got married to the first accused on 4.11.2018. The accused 2 and 3 are the parents of the first accused. Right from the fourth day of the marriage, the accused persons mentally and physically harassed the de-facto complainant by demanding more dowry. They compelled her to sell ten cents of her immovable property that was assigned by her father in her name. However, the de-facto complainant did not yield to the unlawful demands of the accused persons. The first accused abused and intimidated the de-facto complainant for questioning his outside-the-marriage relationship with other women. While so, on 4.12.2023, the first accused got married to a lady in Dubai. After that, on 11.2.2024, the marriage was solemnised at Sreenivasa Perumal Devasthanam, Muthalaipette. The accused 2 and 3 made all arrangements for the marriage. Thus, the accused have committed the above offences.

4. Heard; Sri. Abhilash O.U, the learned counsel appearing for the petitioner, Smt. Pushpalatha M.K. the learned Public Prosecutor and Sri.Renjith R, the learned counsel appearing for the de-facto complainant (intervenor).

5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner's culpability in the crime. The sole intention of the intervenor is to see that the petitioner is arrested and incarcerated. The marriage between the petitioner and the intervenor was solemnised on 4.11.2018. Although the intervenor has alleged that the accused persons had mentally and physically harassed her from the fourth day after her marriage, Annexure-A1 FIR is registered only on 20.7.2024, which is after nearly six years. This proves the falsity and frivolity of the crime. There is no plausible explanation for the inordinate delay in registering the FIR. By Annexure-A8 order, the learned Sessions Judge granted the accused 2 and 3 an order of pre-arrest bail, but dismissed the petitioner's application principally because the petitioner has committed the offence under Section 494 of the IPC. The learned Sessions Judge lost sight of the fact that the offence under Section 494 of the IPC is bailable and non-cognizable. The offence can be taken cognizance only on a private complaint. The onus of proof is on the de-facto complainant to prove that the petitioner has contracted a second marriage, which is not a matter to be investigated by the Police. The documents produced by the intervenor are fabricated. The petitioner is a law-abiding citizen without any criminal antecedents. The petitioner is entitled to parity with the accused 2 and 3. The petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Therefore, the application may be allowed.

6. The learned Public Prosecutor and the learned counsel appearing for the intervenor vehemently opposed the application. They submitted that there are incriminating materials to substantiate the petitioner's culpability in the crime. The petitioner has contracted a second marriage during the subsistence of his marriage with the intervenor. Therefore, the petitioner has committed the offence under Sec.494 of the IPC. Considering the gravity of the said offence, the learned Sessions Judge dismissed the petitioner's application for pre-arrest bail. There is no change of circumstance for the petitioner t