JUDGMENT

Dr. D.P. CHOUDHURY, J. - This is an application under Section 482, Cr.P.C. to quash the proceeding initiated against the petitioner in G.R. Case No.343 of 2004 arising out of Boudh P.S. Case No.146 of 2004 pending in the Court of learned SDJM, Boudh.

FACTS.

2. Sworn of unnecessary details, the prosecution case is that the victim woman, aged about 21 years, was working as maid-servant in the house of Sambhu Mahananda. During the course of her stay there, the petitioner being the son of Sambhu Mahananda was in love with the victim woman. With the promise to marry, the petitioner kept illicit relationship with the victim woman. During the course of sexual intercourse, the victim woman became pregnant and gave birth to a male child. Later on, the petitioner did not marry her. As such, she was cheated by the petitioner. When she asked the petitioner to marry, the petitioner threatened her to kill. Finding no other way, she lodged the F.I.R. The case was registered under Section 506, 493, 417 of the Indian Penal Code. After completion of investigation, the Investigating Officer submitted charge-sheet against the petitioner under Sections 493, 417/506, IPC and cognizance of the said offences was taken by the learned Magistrate. Since the petitioner did not appear, the learned Magistrate issued non-bailable warrant of arrest against the petitioner. Challenging the said order, the petitioner moved this Court to set aside the criminal proceeding initiated against the petitioner.

SUBMISSIONS.

3. Mr.D.P.Dhal, learned Counsel for the petitioner submitted that the offence under Section 493, IPC is not made out even if the FIR. Is gone through because there is nothing available from the F.I.R that the petitioner deceitfully made her to believe that she has lawfully married to the petitioner for which one of the ingredients of the offence under Section 493, IPC is not made out. Similarly, the ingredients of the offence under Section 417 and 506, IPC are not made out for which the registration of the F.I.R. for the commission of such offences should be quashed. In support of his submission, he has cited the decision in Moideenkutty Haji and others v. Kunhihoya and others, AIR 1987 Kerala 189, Amruta Goddia v.Trilochan Pradhan, 1993 Cri.L.J. 1022 and Sauraua Barik v. Smt. Gouri Kaudi @ Gouri, 76 (1993) CLT 428.

4. Learned Addl. Standing Counsel submitted that the F.I.R. makes out a cognizable offence and no affidavit has been filed by the victim woman in this Court. Even also, the informant has not been arrayed as a party in this case. In such situation, the proceeding should not be quashed.

5. The main point for consideration.

Whether the order of taking cognizance is liable to be quashed and consequently the entire criminal proceeding is also liable to be quashed

DISCUSSIONS

6. Section 493, IPC has the following ingredients :

(i) The deceit that causes a false belief in the existence of lawful marriage.

(ii) Cohabitation or sexual intercourse with the person causing such belief.

7. The Full Bench of Kerala High Court in Moideenkutty Haji (supra) have observed as follows :

“ xxxx The essence of the section is therefore the deception caused by a man on a woman in consequence of which she is led to believe that she is lawfully married to him while in fact they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception of inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage took place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true, the section is not being attracted. The allegation is that though they are not husband and wife, they had sexual union during late hours in the night for a pretty lo