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2001 DIGILAW 1249 (PNJ)

Nafe Singh v. Mohinder Dass

2001-11-07

V.M.JAIN

body2001
JUDGMENT V.M. Jain, J. - This is a petition under section 482 Criminal Procedure Code filed by the accused petitioners, seeking quashment of the criminal complaint and the summoning order dated 17.12.1999 passed by the learned Magistrate ordering summoning of the accused-petitioner under section 494 read with sections 109 and 120-B Indian Penal Code and all subsequent proceedings taken thereon. 2. In the criminal complaint, copy Annexure P1, it was alleged by Mohinder Dass, complainant, that his marriage with Smt. Santosh Rani (accused No. 1) had taken place on 20.2.1990, according to Hindu rites by Satpathi and that accused No. 1, Smt. Santosh Rani is has legally wedded wife and that they lived together as husband and wife and a son namely Onkar @ Om Parkash was born out of ths wedlock. It was alleged that his wife accused No. 1 Santosh Rani left the matrimonial house on 12.4.1998, leaving the minor child in the house of the complainant. It was alleged that the complainant made efforts to trace his wife Smt. Santosh Rani but in vain and ultimately about a week back Gurdas Ram PW met the complainant and told him that that on 10.5.1998 he had gone to a Mandir at Panipat and there he saw accused No. 1 Santosh Rani being married with accused No. 2 Sanjay Kumar and that all the accused persons were present at the time of said marriage. It was alleged that Gurdas Ram had told him that he (Gurdas Ram) had told accused Sanjay and other accused that accused Santosh Rani was already married with Mohinder Dass complainant and how she was contracting the marriage second time, whereupon all the accused told him (Gurdas Ram) as to who he was to interfere in the said marriage. It was alleged that in the presnece of Gurdas Ram, the second marriage of Smt. Santosh Rani with accused Sanjay Kumar had taken place. It was alleged that after he came to know about the said marriage from Gurdas Ram, the complainant made inquiries and came to know that his wife Smt. Santos Rani had contracted second marriage with accused Sanjay Kumar. It weas alleged that since sicne accused Santosh Kumari had contracted second marriage with accused Sanjay Kumar, in connivance with other accused, during the lifetime of her husband Mohinder Dass, complainant, all the accused had committed the offence under Sections 494/109/120-B Indian Penal Code. It weas alleged that since sicne accused Santosh Kumari had contracted second marriage with accused Sanjay Kumar, in connivance with other accused, during the lifetime of her husband Mohinder Dass, complainant, all the accused had committed the offence under Sections 494/109/120-B Indian Penal Code. After recording preliminary evidence in the form of statements of Mohinder Dass as CW1 and Gurdas Ram as CW2, the learned Magistrate vide order dated 17.12.1999 ordered summoning of accused No. 1 Smt. Santosh Rani for the offence, the under Section 494 Indian Penal Code, while remaining accused for the offence under Section 494 Indian Penal Code read with Sections 109 and 120-B Indian Penal Code. 3. The present petition under Section 484 Criminal Procedure Code has been filed seeking quashment of the criminal complaint and the summong order passed by the learned Magistrate, on behalf of petitioners, who are father, mother, brother, sister and sisters husband of the co-accused Sanjay Kumar. As per the allegations made in the complaint, accused No. 1 Santosh Rani (alleged wife of Mohinder Dass, complainant), had contracted second marriage with accused No. 2 Sanjay Kumar and that the other accused, who are petitioners in the present petition, were present at the time when the second marriage had taken place. Furthermore, as per the complaint, at the time of the said marriage Gurdas Ram had told the accused that Smt. Santosh Rani was already married with complainant Mohinder Dass and still the marriage between Smt. Santosh Rani and Sanjay Kumar had taken place. 4. The question that comes up for consideration in the present petition is as to whether the present petitioners, who are the parents, brother, sister and sisters husband of accused Sanjay Kumar, the alleged second husband of Santosh Rani, had committed any offence under Sections 494 read with Sections 109 and 120-B Indian Penal Code, as they were present at the time when the alleged second marriage of Smt. Santosh Rani had taken place with Sanjay Kumar. 5. In Smt. Chand Dhawan v. Jawahar Lal and other, 1992(3) RCR 534 (SC) Honble Supreme Court was considering the question about the involvement of the persons who were present at the time of alleged second marriage as accused for the offence under Sections 494 Indian Penal Code. 5. In Smt. Chand Dhawan v. Jawahar Lal and other, 1992(3) RCR 534 (SC) Honble Supreme Court was considering the question about the involvement of the persons who were present at the time of alleged second marriage as accused for the offence under Sections 494 Indian Penal Code. In the reported case, Smt. Chand Dhawan was married to Jawahar Lal on 19.9.1972 and three children were born out of that wedlock and thereafter they started living separately. Proceedigns for dissolution of marriage, custody of minor children and criminal prosecution were pending between the parties. In the meantime, Smt. Chand Dhawan filed a criminal complaint for for bigamy, alleging therein that her husband Jawahar Lal had married Shashi Arora on 8.2.1989 and that parents of Jawahar Lal and Shashi Arora in cnspiracy, intentionally abetted the performacne of second marriage with the full knowledge about the first marriage of Jawahar Lal with Smt. Chand Dhawan complainant. After recording the preliminary evidnece the learned Magistrate ordered the summoning of the accused under Sections 494 and 109 Indian Penal Code. Thereupon, Jawahar Lal filed petition under Section 482 Criminal Procedure Code before the High Court and the High Court vide order dated 18.3.1991 quashed the complaint and subsequent proceedings. Aggrieved against the said order, Smt. Chand Dhawan, complainant filed appeal before the Honble Supreme Court. After considering various contentions of both the sides, the Honble Supreme Court was of the view that the High Court had clearly erred in reaching the conclusion that the proceedings are liable to be quashed. It was further observed that in the light of allegations made in the complaint and material produced in support of these allegations by the appellant before the Magistrate, the issue of process to respondents 1 and 2, who are alleged to have solemnised the second marriage during the subsistence of the earlier valid marriage of the appellant, was proper and when the process had been issued the proceedings had to continue in accordance with law against the respondents 1 and 2. Regarding the other accused, it was held by their Lordships of the Supreme Court that they had been unnecessarily and vexatiously roped in. It was further held that it could not be assumed that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting. Regarding the other accused, it was held by their Lordships of the Supreme Court that they had been unnecessarily and vexatiously roped in. It was further held that it could not be assumed that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting. Accordingly, the appeal was partly allowed and the order with regard to respondents 1 and 2 were set aside and it was held that the complaint should proceed against these two respondents in accordance with law. 6. In the present case as well, so far as petitioners are concerned, they are parents, brother, sister and sisters husband of the accused Sanjay Kumar. As per the allegations made in the complaint, accused No. 1 Smt. Santosh Rani married accused No. 2 Sanjay Kumar during the subsistence of her marriage with complainant Mohinder Dass. The fact that Santosh Rani was already married to Mohinder Dass, complainant, would be known to accused No. 1 Smt. Santosh Rani. If the statement of Gurdas Ram is accepted that at the time of marriage he had told the persons present there about the existing marriage of Smt. Santosh with Mohinder Dass, even then, so far as present petitioners are concerned, it could not be said that these petitioners in any manner had abetted the offence of bigamy merely by being present there at the time of marriage. Similarly, it could not be said that they had entered into any conspiracy in this regard. After coming to know about the existing marriage of Smt. Santosh Rani with Mohinder Dass, if Sanjay Kumar had still married Smt. Santosh Rani, he may be guilty. Smt. Santosh Rani may also be guilty. Her mother Smt. Chando, who is also one of the accused but not a petitioner before me may also be guilty. However, so far as present petitioners are concerned, it could not be said that any case was made out against them for the offences under Sections 494 read with Sections 120-B and 109 Indian Penal Code. In my opinion, the proceedings against these petitioners would be an abuse of the process of the court. 7. For the reasons recorded above, the present petition is allowed and the criminal complaint, summoning order and all subsequent proceedings against the present petitioners are hereby quashed. Petition allowed.