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2005 DIGILAW 1324 (RAJ)

Devendra Singh v. State of Rajasthan

2005-05-05

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code"), the petitioners have challenged the order dated 23.01.2004 passed by the Judicial Magistrate, Anoopgarh (for short, "the trial Court" hereinafter) in Criminal Case No. 445/2000, by which the trial Court took cognizance against the petitioners for the offences punishable under Sections 494 and 494/109, IPC. 2. The facts of the case, relevant and necessary for decision of the instant criminal petition, are that on 02.02.1999, complainant-respondent No. 2 Baljeet Kaur filed a criminal complaint before the trial Court, inter alia, stating therein that her marriage took place with petitioner No. 1 Devendra Singh on 31.01.1999 and out of this wed-lock, she gave birth to three children from the loin of petitioner No. 1 Devendra Singh. It was alleged that soon after the marriage, there was perpetual demand of dowry by the members of her in-laws and ultimately she was turned out from her in -laws house two years prior to the date of filing the complaint, whereupon a panchayat was convened but her husband and in-laws did not agree to keep her, whereupon she filed a case under Sections 498-A, 406, 420, 323, 384, 506, 363, and 120-B, IPC. It was further alleged that when the complainant came to know that petitioner No. 1 is going to contact second marriage with petitioner No. 4 Kalwant Kaur, they went to the village where the marriage was to be solemnized on 10.06.1998 but their efforts could yield nothing and the marriage between the petitioner No. 1 and petitioner No. 4 was solemnized on 10.06.1998 during the subsistence of marriage between petitioner No. 1 and the complainant-respondent No. 2. The trial Court, after recording the statement of the complainant and her witnesses under Sections 200 and 202, CrPC, took the cognizance of the aforesaid offences against the petitioner and vide impugned order dated 23.01.2004 framed the charges against the petitioners for the aforesaid offences. 3. I have heard learned Counsel for the petitioners and the Public Prosecutor as also the Counsel for the complainant-respondent No. 2. I have carefully perused the impugned order and the record of the case. 4. 3. I have heard learned Counsel for the petitioners and the Public Prosecutor as also the Counsel for the complainant-respondent No. 2. I have carefully perused the impugned order and the record of the case. 4. It has been contended by the learned Counsel for the petitioners that as per the allegation, the bigamy took place on 10.06.1998 whereas there is no such averment in the application dated 06.08.1998 filed by the complainant under Section 24 of the Hindu Marriage Act and the complaint has been filed by her after filing of the divorce petition by petitioner No. 1 on 01.08.1997. Placing reliance on certain Judgment s, it has been contended by the learned Counsel for the petitioners that the trial Court has erred in framing charges under Section 494/109, IPC, despite the fact that in those Judgment s, it has been held that mere presence of a person at the time of second marriage does not make out a prima facie case of abetment against him. 5. Petitioner No. 1 Devendra Singh is the husband whereas petitioners No. 2 and 3 are the father-in-law and mother-in-law respectively of complainant-respondent No. 2. Petitioner No. 4 Kalwant Kaur is the lady, with whom petitioner No. 1 Davendra Singh contacted second marriage whereas petitioner No. 5 Gajjan Singh and petitioner No. 6 Mst. Charan Kaur are the parents of petitioner No. 4 Kalwant Kaur. The trial Court, vide impugned order, framed charge under Section 494, IPC, against petitioner No. 1 Devendra Singh and petitioner No. 4 Smt. Kalwant Kaur, whereas charge under Section 494/109, IPC has been framed against the remaining petitioners who are parents of petitioners Devendra Singh and Kalwant Kaur. 6. The admitted fact on record is that on 01.08.1997, a divorce petition had been filed by petitioner No. 1 seeking divorce from respondent-complainant there is no evidence of dissolution of the marriage solemnized between petitioner No. 1 and respondent No. 2 as no divorce decree has been placed on record. 6. The admitted fact on record is that on 01.08.1997, a divorce petition had been filed by petitioner No. 1 seeking divorce from respondent-complainant there is no evidence of dissolution of the marriage solemnized between petitioner No. 1 and respondent No. 2 as no divorce decree has been placed on record. To prove the offences of bigamy and abetment for bigamy, respondent-complainant examined herself as CW 1 and stated that on being learnt that the petitioner No. 1 is going to contact second marriage, they, along with members of panchayat, went to the house of parents of petitioner No. 4 Kalwant Kaur and came to know that the marriage between petitioners No. 1 and 4 was scheduled to be performed on 10.06.1998. On 10.06.1998, they again went there and tried their best and forbade the parents of Kalwant Kaur but they did not agree. She further stated that the marriage-ceremony between petitioner No. 1 and petitioner No. 2 was performed by Granthi Muktiar Singh and when they informed him about existence of marriage of respondent-complainant with petitioner No. 1, the Granthi told that he was informed that petitioner No. 1 is already married but it was also told that a divorce had already taken place from the earlier wife whereas there was no such divorce. She further stated that the marriage-ceremony was arranged by one Laxman Singh. She has specifically stated that the parents of Kalwant Kaur were aware about the earlier marriage of petitioner No. 1 with the complainant-respondent No. 2 and it is petitioner No. 4 Kalwant Kaur who is looking-after the two children of complainant-respondent. 7. CW 2 Mukhtiar Singh is the Granthi, who has given statement to the effect that on 10.06.1998, he performed the marriage-ceremony between petitioners Devendra Singh and Kalwant Kaur and it was Laxman Singh who called him for performing this marriage. He has stated that looking to the age of petitioner Devendra Singh, he told that it might not be his first marriage, whereupon Laxman Singh and the parents of Kalwant Kaur told him that a divorce had already taken place from the first wife. He has stated that the parents Devendra Singh and Kalwant Kaur as also Laxman Singh were present at the time of marriage between them. After some time, complainant-respondent Baljeet Kaur and her parents etc. He has stated that the parents Devendra Singh and Kalwant Kaur as also Laxman Singh were present at the time of marriage between them. After some time, complainant-respondent Baljeet Kaur and her parents etc. came to him and told what he had done, whereupon he told them that he was put in dark and was not aware about existence of the first marriage. Thereafter, he himself came to know that there were three children from the first marriage. 8. CW 3 Harbans Singh has stated that the marriage between petitioners Devendra Singh and Kalwant Kaur took place on 10.06.1998 and being friend of Gajjan Singh (father of Kalwant Kaur), he also attended the marriage, which was performed by a Granthi, whose name he did not know. He has stated that the parents and other close relatives of Devendra Singh and Kalwant Kaur were present there. He has further stated that the complainant-respondent and her parents had reached there in a jeep and despite being informed about the first marriage, the second marriage of Devendra Singh was got performed. 9. CW 4 Swaran Singh is the father of complainant-respondent, who has stated that on being learnt about the second marriage of petitioner Devendra Singh with petitioner Kalwant Kaur, he, alongwith their relatives and members of panchayat, went to the parental house of petitioner Kalwant Kaur and informed her parents about the existence of first marriage of Devendra Singh and persuaded them not to perform the second marriage but they did not agree. He has further stated that at the time of performance of second marriage of petitioner Devendra Singh with Kalwant Kaur, the parents of both the spouses were present there and the second marriage was performed by Granthi Mukhtiar Singh. Similar is the statement of CW 5 Avatar Singh the cousin of complainant-petitioner. 10. Thus, from the evidence of aforesaid witnesses, it is prima facie established that during subsistence of marriage of petitioner Devendra Singh with complainant-respondent Baljeet Kaur, the second marriage of petitioner Devendra Singh with petitioner Kalwant Kaur took place on 10.06.1998 and in that marriage, the remaining petitioners, who are the parents of petitioners, Devendra Singh and Kalwant Kaur were present there. It is also prima facie established that the parents of Kalwant Singh, i.e. petitioner. No. 5 Gajjan Singh and petitioner No. 6 Mst. It is also prima facie established that the parents of Kalwant Singh, i.e. petitioner. No. 5 Gajjan Singh and petitioner No. 6 Mst. Charan Kaur, were informed by the members of complainant-party about subsistence of first marriage of Devendra Singh with complainant-petitioner Baljeet Singh. So far as the parents of petitioner No. 2 Malkiat Singh and petitioner No. 3 Mst. Deep Kaur, are concerned, there is a reasonable ground to believe that they were well aware about the first marriage of petitioner Devendra Singh and were also knowing that no divorce had taken place between petitioner Devendra Singh and complainant-respondent Baljeet Kaur. Therefore, prima facie, there is sufficient evidence on record for framing charge under Section 494, IPC, against petitioner No. 1 Devendra Singh and petitioner No. 4 Kalwant Kaur. There is also prima facie evidence for framing charge under Section 494/109, IPC against remaining petitioners, being the parents of the spouses, for abetting the second marriage of Devendra Singh during subsistence of his first marriage with complainant-respondent. 11. In Tej Kaur & Ors. vs. Smt. Amarjit Kaur, 1993 (1) CrLR 134, Darshan Kaur vs. Shashi Bal, 1993 (2) CLR 617 and Smt. Krishna Rani @ Krishna Devi & Ors. vs. State of Punjab & Anr., 1991 (1) CLR 383, relied upon by the learned Counsel for the petitioners, the law propounded is to the effect that mere presence of a person at the time of second marriage does not make out a prima facie case of abetment against him. In the instant case, the parent of petitioners Devendra Singh and Kalwant Kaur, who are petitioners No. 2,3,5, and 6 herein, were well aware about the first marriage of petitioner Devendra Singh with complainant-respondent and were also knowing that no divorce took place between them but still they allowed second marriage of petitioner Devendra Singh with petitioner Kalwant Kaur. Therefore, prima facie, it cannot be said that they did not abet the second marriage. 12. In Chand Dhawan (Smt.) vs. Jawahar Lal & Ors., 1992 SCC (Cr) 636, the Honble Supreme Court held that where there are no allegations prima facie constituting the offence alleged in the complaint, the power of quashing the complaint should be exercised to save abuse of process of Court or to secure ends of justice. In the instant case, there is sufficient evidence which prima facie establish commission of the aforesaid offences by the petitioners. In the instant case, there is sufficient evidence which prima facie establish commission of the aforesaid offences by the petitioners. In view of the law laid down by the Honble Supreme Court in State of Orissa vs. Debendra Nath Padhi, 2004 (8) Supreme 568 , at the stage of framing the charge, material as produced by the prosecution alone is to be considered and not the one produced by the accused. In State of M.P. vs. S.B. Johari & Ors., AIR 2000 SC 665 , the Honble Supreme Court held that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. In view of the settled proposition of law, as there is sufficient evidence on record prima facie to presume the commission of offence of bigamny and abetment of bigamy against the petitioners and, therefore, in my considered view, the trial Court is justified in framing charges against the petitioners for the aforesaid offences. I find no illegality, error or perversity in the order impugned, which may require interference in the revisional jurisdiction. 13. Consequently, the revision petition lacks merit and it is dismissed accordingly. The stay petition also stands dismissed.