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1978 DIGILAW 145 (MAD)

Bhoopal Rayappa Patil v. Smt. Muradevi and others

1978-02-22

G.N.SABHAHIT

body1978
Order.- This revision petition is instituted by accused-8 in C.C. No. 1220 of 1976 on the file of the Judicial Magistrate, First Class, Gokak, and is directed against the order passed by him issuing summons against the petitioner and others for an offence punishable under section 497 and section 497 read with section 109, Indian Penal Code. 2. One Smt. Muradevi instituted a complaint before the learned Magistrate on 16th December, 1976 affirming that she is the married wife of accused-1 Baburao; that accused-1 has now married accused-2 Champavva and Champavva agreed to marry accused-1 and married him fully knowing that accused-1 was already married to the complainant and that the other accused helped accused-1 and accused-2 in their marriage knowing fully well that accused-1 was already married to the complainant and that she was alive. She was averred these things in her complaint. 3. The learned Magistrate has recorded her sworn statement on the same day. She has deposed to all these things mentioned in the complaint. She has also examined, as her witness, one Chintamani. a priest in the Jain temple at Kalloli, who actually performed the marriage of accused-1 and accused-2 on 26th November, 1976. He has stated that he performed the marriage as it was not disclosed to him that accused-1 was already married to the complainant. He has deposed to the factum of marriage also to the fact that the other accused mentioned in the complaint were present at the time of the marriage and they actively participated and helped accused-1 and accused 2 to marry. On the basis of the sworn testimony of the complainant and the evidence of her witness, the Magistrate issued process against nine accused mentioned in the complaint on 16th December, 1976. Aggrieved by the said order, accused-8 has come up in revision before this Court under section 482 of the Code of Criminal Procedure, praying that the process issued against him be quashed in the interest of justice. 4. The learned Advocate appearing for the petitioner vehemently argued that neither the complainant nor the priest have deposed to the details of marriage ceremony and that the prosecution must establish that the essential ceremonies of a valid marriage were gone through by the accused before the accused and others could be hauled up under section 497 or section 497 read with section 109, Indian Penal Code. 5. 5. As against this, the learned Counsel appearing for the complainant strenuously urged that the accused has no locus standi to bring in his defence at this stage and that the learned Magistrate was perfectly justified in relying on the sworn testimony of the complainant and the priest, examined on her behalf in being prima facie satisfied that accused-1 carried accused-2 even when the complainant, the first wife of accused-1, was alive and that the other accused being present helped accused-1 to marry accused-2. 6. It is now well established that at, the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and that he is only to prima facie satisfy himself whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate at that stage to enter into a detailed discussions of the merits or demerits of the case. 7. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion properly, it is not for the High Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations as in the complaint if proved, would ultimately end in conviction of the accused. 8. In the instant case, the Magistrate has relied on the sworn testimony of the complainant and her witness, the priest, who performed the marriage. Both of them have sworn that accused-1 married accused-2 in the Jain temple and the rest of the accused helped them. When the witness, especially the priest, has positively sworn that accused-I married accused-2 in the temple, it is obvious that marriage was performed in a legal way. There is no substance, therefore, in the submission made by the learned Counsel for the petitioner that the marriage was not properly performed or that the ceremonies required to constitute a marriage were not gone into. At this stage, the accused has no locus standi to bring in his defence. There is no substance, therefore, in the submission made by the learned Counsel for the petitioner that the marriage was not properly performed or that the ceremonies required to constitute a marriage were not gone into. At this stage, the accused has no locus standi to bring in his defence. All that this Court is concerned at this stage is to find out whether the discretion used by the learned Magistrate has been used properly and not arbitrarily or capriciously and looking into the facts of this case, it cannot be said that the Magistrate has used this discretion either illegally or arbitrarily or capriciously. Both the complainant and the priest have sworn that accused-8 was present and he actively assisted in the ceremonies of the marriage. That being so, I find absolutely no ground to invoke the inherent powers vested in this Court under section 482, Criminal Procedure Code. The petition, in the circumstances, is liable to be dismissed and I dismiss the same.