Consent obtained through misrepresentation constitutes an offence under the IPC, and the existence of a prior marriage must be proven at trial.

ORDER :

Crl.R.P.No.295/2015 has been filed by the sole accused in S.C.No.371/2013 on the files of the I Additional Sessions Court, Thalassery, challenging common order in Crl.M.P.Nos.6047/2014 and 6392/2014 in the said case dated 9.1.2015. Respondents in the Crl.R.P. are the Station House Officer, Kadirur Police Station, Thalassery represented by the Public Prosecutor and the de facto complainant.

2. Crl.M.C.No.1221/2015 has been filed at the instance of the same accused. In this case, the petitioner seeks to set aside order in C.M.P.No.370/2015 in S.C.No.371/2013 dismissing the prayer for further investigation. Respondents in the Crl.M.C. are also same as that of the Crl.R.P.

3. Heard the learned senior counsel for the revision petitioner/petitioner and the learned Public Prosecutor. Also heard the learned counsel appearing for the 2^nd respondent/de facto complainant, in detail.

4. The prosecution case was generated based on a private complaint lodged by the de facto complainant before the Additional Chief Judicial Magistrate Court, Thalassery alleging commission of offences punishable under Sections 420, 493, 494, 495 as well as 376 of the Indian Penal Code (for short, 'the IPC' hereinafter), by the petitioner. After investigation of the above complaint, as directed by the learned Magistrate, final report was filed alleging that the petitioner committed offences punishable under Sections 420, 493, 494, 495 as well as 376 of the IPC.

5. Earlier, the revision petitioner/petitioner approached this Court and filed Crl.M.C.No.5051/2013 to quash the proceedings and the said relief was disallowed and the Crl.M.C was disposed of with direction to the petitioner to file discharge petition before the trial court. Accordingly, the revision petitioner/petitioner filed two petitions viz., Crl.M.P.Nos.6047/2014 and 6392/2014, seeking discharge and by common order, dated 9.1.2015, the learned I Additional Sessions Judge dismissed both the petitions. C.M.P.No.370/2015 filed, seeking further investigation, also was dismissed by a separate order.

6. The allegation of the prosecution in terms of the complaint raised by the de facto complainant is that, while the de facto complainant was residing along with one Divakaran, who was her former husband, after divorce from the said person, under compulsion of her relatives, the accused, being a regular visitor of the house of the de facto complainant, made acquaintance with her and offered her a peaceful married life, on the premise that he was a bachelor. Since the life of the de facto complainant along with Divakaran found to be unhappy, she went along with the accused to Mysore and conducted a ceremony of marriage in the year 1996. Thereafter, they cohabited as married couple till 2003 at various places and had repeated sexual intercourse and the de facto complainant believed that the accused really married her. Thereafter, the accused neglected her and the de facto complainant filed M.C.No.31/2008 before the Judicial First Class Magistrate Court-IV, Kozhikode under the Protection of Women from Domestic Violence Act, 2005 (for short, ‘the DV Act’ hereinafter), where the accused disclosed that he had previously married and had two children and accepting the said contention of the accused, M.C.No.31/2008 was dismissed, finding no act of domestic violence. Challenging the said order in M.C., the de facto complainant filed Crl.Appeal and the same also was dismissed. Thus, the specific case of the de facto complainant is that, after suppressing earlier marriage of the accused, he had effected second marriage with the de facto complainant, thereby, the accused cheated the de facto complainant and had sexual intercourse with her based on the consent obtained as the outcome of an illegal marriage by means of fraud. The further case of the de facto complainant is that, thereby, the accused had cohabitation with the de facto complainant deceitfully inducing the belief of lawful marriage, and he had married the d