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2008 DIGILAW 2666 (MAD)

Emmima v. Puela

2008-07-28

K.MOHAN RAM

body2008
Judgment The petitioner/second accused, who is the first wife of the first accused in C.C.No.477 of 2007 on the file of the learned Judicial Magistrate, Tambaram is facing trial for the alleged offence under Sections 494 r/w.109 IPC, on the complaint lodged by the respondent/first wife. 2. The petitioner has filed the above criminal original petition seeking to quash all further proceedings in C.C.No.477 of 2007. 3. Heard both. 4. Mr.G.M.Ramakrishnan, learned counsel for the petitioner submits that the respondent herein claiming to be the legally married first wife, lodged a private complaint for the alleged offences under Sections 494, 495 and 406 IPC alleging that while the first accused had a wife, namely the second accused, the first accused married the complainant on 210. 2001 by concealing the factum of the first marriage of the second accused and thereby they have committed the offence under Section 495 IPC. 5. The learned counsel for the petitioner further submitted that in the complaint, it is alleged that at the time of marriage, the complainant was given 17 sovereigns of gold articles by her father and it was misappropriated by the first accused and in spite of notice, the same was not returned and thereafter the first accused committed an offence under Section 406 IPC. In the complaint, it has also been stated that the second accused, the petitioner herein had the knowledge of the marriage of the complainant and hence she conspired with A1 for the marriage of the complainant and therefore, the petitioner,A-2 is liable for the offence under Section 494 IPC r/w 109 IPC. The learned counsel submitted that on a consideration of the averments contained in the complaint and the sworn statement of the complainant, the learned Magistrate being satisfied that only an offence under Section 406 and 495 IPC alone are made out, took cognizance under Sections 406 and 495 IPC only. 6. The learned counsel for the petitioner further submits that neither the offence under Section 406 IPC, nor the offence under Section 495 IPC have been made out as against the petitioner herein, since necessary allegations constituting the ingredients for the said offences are neither stated in the complaint, nor in the sworn statement of the complainant. 6. The learned counsel for the petitioner further submits that neither the offence under Section 406 IPC, nor the offence under Section 495 IPC have been made out as against the petitioner herein, since necessary allegations constituting the ingredients for the said offences are neither stated in the complaint, nor in the sworn statement of the complainant. The learned counsel submits that the offence under Section 495 can be committed only by a person, who commits an offence under Section 494 IPC, if such person concealed from the person with whom second marriage is contracted of the former marriage, whereas the allegation in the complaint is the first accused married the complainant by concealing his marriage with the second accused, and as such, if at all, any offence is made out, it can be only as against the first accused. The learned counsel submitted that the first wife has not contracted the second marriage and the question of concealing the first marriage does not arise and hence the offence under Section 495 IPC could not have been committed by the second accused, the first wife of the first accused. 7. The learned counsel for the petitioner also submitted that absolutely no averments have been made in the complaint and in the sworn statement constituting the ingredients of the offence under Section 406 IPC and there is no specific allegation that any jewellery was entrusted with the petitioner or she abetted the commission of an offence under Section 406 IPC. Therefore, the learned counsel for the petitioner submitted that no prima facie case has been made out as against the petitioner and any further continuance of the proceedings in C.C.No.477 of 2007 will amount to clear abuse of process of Court and on the aforesaid submissions, the learned counsel submits that all further proceedings are liable to be quashed. 8. Countering the said submissions, Mr.S.Sairaman, learned counsel for the respondent by taking the Court through the allegations contained in the complaint as well as the sworn statement of the complainant, submitted that there are allegations disclosing prima facie the commission of offence under Sections 495 and 406 IPC by the petitioner and hence the complaint cannot be quashed at this stage. 9. In support of his submissions, the learned counsel for the respondent placed reliance on the decision of this Court in MURUGESAN AND OTHERS VS. 9. In support of his submissions, the learned counsel for the respondent placed reliance on the decision of this Court in MURUGESAN AND OTHERS VS. RAMALAKSHMI reported in 2000(3) MWN (Cr) 275. 10. A perusal of the above judgment of this Court shows that the facts of the case are totally different and it is not applicable to the facts of the case on hand. 11. I have carefully considered the said submissions made on either side. 12. Before considering the submissions of the counsel on either side as to whether the offence under Section 495 IPC has been committed by the petitioner and whether there are any allegation for attracting the offence, it will be useful to refer to the provision contained in section 495 IPC itself. Section 495 IPC reads as follows:- Section 495 IPC. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted- "Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 13. A careful reading of the above section makes it abundantly clear that the words "whoever commits the offence defined in the last preceding section" will only refer to the person who has contracted the second marriage and in this case, as per the allegations in the complaint, such person is the first accused, and not the second accused, and further allegation in the complaint is that the husband, the first accused, concealed from the complainant, with whom he has contracted the marriage subsequently, and therefore, the said provision contained under Section 495 IPC will not apply to the second accused, the petitioner herein. Therefore, the contention of the learned counsel for the petitioner that Section 495 IPC is "person" specific has to be accepted. Therefore, it has to be held that no offence has been committed by the petitioner under Section 495 IPC. 14. Therefore, the contention of the learned counsel for the petitioner that Section 495 IPC is "person" specific has to be accepted. Therefore, it has to be held that no offence has been committed by the petitioner under Section 495 IPC. 14. As far as the cognizance taken by the Court below in respect of the offence under Section 406 IPC is concerned, it has to be pointed out that unless there are specific allegations in the complaint or in the sworn statement of the complainant regarding the entrustment of the jewels or money and allegations of abetment on the part of the petitioner herein, then no cognizance ought to have been taken. 15. A careful reading of the complaint as well as the sworn statement of the complainant shows that not even a single allegation has been made as against the petitioner herein to the effect that the jewels or money was entrusted to the petitioner herein or she abetted the commission of offence under Section 406 IPC. 16. Learned counsel for the respondent submitted that the legal notice was issued calling upon the petitioner herein to return the jewels received from the complainant, but there was no reply from the complainant and as such that aspect also should be taken into consideration. I am unable to accept the said contention. 17. Since there is absolutely no allegation at all in the complaint or in the sworn statement of the complainant to attract the ingredients of Section 406 IPC or Section 406 r/w 109 IPC, the Court below erred in taking cognizance of the complaint in respect of the said offence as against the petitioner. 18. For the aforesaid reasons, the criminal original petition has to be allowed and accordingly allowed. Therefore, all further proceedings in C.C.No.477 of 2007 as against the petitioner (second accused) are quashed.