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2008 DIGILAW 4444 (MAD)

B. Sekar & Others v. S. Latha

2008-12-02

K.MOHAN RAM

body2008
Judgment :- 1. The petitioners who are accused in C.C.No.124 of 2005 on the file of the learned Judicial Magistrate, Arakkonam, Vellore District, have filed the above Criminal Original Petition under Section 482, Cr.P.C., to quash all further proceedings in C.C.No.124 of 2005. 2. The brief facts which are necessary for disposal of the Criminal Original Petition are set out below: The complainant/respondent herein is the first wife of the first petitioner; second petitioner is the father of the first petitioner and the third petitioner is alleged to be the second wife of the first petitioner. The respondent filed a Private Complaint against the petitioners herein alleging that the first petitioner has married the third petitioner in the presence of the second petitioner on 22. 2005 at Ramagiri Vaaleeswaran Temple, Andhra Pradesh State. On the basis of the said Complaint and the sworn statement of the respondent, the learned Judicial Magistrate, Arakkonam has taken cognizance of the Complaint for the offence punishable under Section 494, IPC. Being aggrieved by that the petitioners have filed above Criminal Original Petition. 3. Mr. N. Sudharsan, learned counsel for the petitioners submitted that the learned Magistrate ought not to have taken cognizance of the Complaint for the offence under Section 494, IPC since the allegations contained in the sworn statement do not disclose the ingredients of the offence punishable under Section 494, IPC. The learned counsel further submitted that the respondent has not produced any evidence to show the form of marriage alleged to have been gone through by the third petitioner with the first petitioner; it is not alleged that the essential ceremonies for performing a valid marriage were performed or followed at the time of performance of second marriage and the details of the time and the name of the witnesses who were present at the time of the alleged second marriage had also not been stated and in such circumstances, it cannot be said that the ingredients of the offence punishable under Section 494 have been made out. 4. 4. In support of the said contention, the learned counsel relied upon the decision of this Court in Prasanna Kumar v. Dhanalaxmi, 1989 Crl.L.J. 1829, wherein in para No.7, it is laid down as under: "7 It is also to be pointed out that in the Complaint, which had been given long after, the details of the place where exactly the marriage took place and on what date the marriage took place have not been mentioned. Apart from mentioning that the marriage was performed secretly in the presence of the other accused and some people close to the accused, there is no indication whatsoever as to who had witnessed the occurrence. No doubt learned counsel for the first respondent-complainant submitted that one Pakirisami and another Ramakrishnan witnesses 1 and 2 respectively are the witnesses who witnessed the marriage. Even the said fact of their witnessing the marriage had not been mentioned in the Complaint. There is also no mention in the Complaint in what manner the marriage took place. Admittedly, the parties are Hindus. While so the necessary ingredients of the offence under Section 494, IPC, have to be mentioned and it is to be pointed out that there should be an allegation that the accused gone through a form of marriage recognized by law and the second respondent whom the first accused is alleged to have married and the parents of the second respondent had knowledge of such marriage of the petitioner with the complainant. It is idle to contend that having regard to the fact that A-1 is already married to the complainant the marriage naturally was performed secretly without mentioning in what form the marriage took place. In a Bigamy case, the second marriage as a fact, has to be established, and the admission of the marriage by the accused is not evidence of it for the purpose of proving marriage as laid down in the case reported in Kanwalram v. Himachal Pradesh Administration, AIR 1966 SC 614 : 1966 Crl.L.J 472. In a Bigamy case, the second marriage as a fact, has to be established, and the admission of the marriage by the accused is not evidence of it for the purpose of proving marriage as laid down in the case reported in Kanwalram v. Himachal Pradesh Administration, AIR 1966 SC 614 : 1966 Crl.L.J 472. Thus, taking into consideration the Complaint filed by the first respondent it has to be stated that the allegations made in the Complaint with regard to the second marriage by the first accused (the petitioner herein) with the second accused (the second respondent herein) taken along with the sworn statement did not disclose the essential ingredients of the offence under Section 494, IPC and on the allegations made in the Complaint no prudent person could reach a conclusion that there is sufficient ground for proceeding against the accused. It has been laid down by the Supreme Court in the case reported in Sharda Prasad v. State of Bihar, AIR 1977 SC 1754 in para 2 at page 1755: 1977 Crl. L.J 1146 at para 1147 that it is now settled law that where the allegations set out in the Complaint or the charge-sheet doe not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482, Cr.P.C., to quash the order passed by the Magistrate taking cognizance of the offence. 5. The learned counsel also relied on the decision of mine dated 112. 2007 rendered in Crl.O.P. No.30612 of 2006, wherein in para No.6, it has been held as under: "6. I have carefully considered the above said submissions made by the learned counsel on either side. At the outset, it has to be pointed out that a perusal of the Complaint lodged by the second respondent does not contain any averments constituting the ingredients for the commission of an offence under Section 494, IPC. As rightly contended by the learned counsel for the petitioner that under the charge of Bigamy, if the evidence showed that the essential ceremonies have not been performed cannot justify the conviction even though admitted by the accused and that the prosecution must prove that the second marriage was duly performed in accordance with religious rites applicable to the form of marriage and an admission by the accused in this respect cannot be made the basis of conviction. A perusal of the statement of witnesses recorded under Section 161 of the Criminal Procedure Code during the course of investigation also shows that the necessary averments constituting an offence under Section 494, IPC are conspicuously absent. The witnesses have simply stated that the petitioner had admitted to the complainant that he had married Mumtaz. Such a statement alone cannot be the basis for framing a charge under Section 494, IPC. As laid down in the decision reported in Kanwal Ram v. Himachal Pradesh Administration, 1960 MLJ Crl.151 (SC), under the charge of Bigamy, if the evidence showed that the essential ceremonies have not been performed it cannot justify the conviction even though admitted by the accused. 1-lere there is no such direct admission on the part of the petitioner, but the second respondent in her statement had stated that as if the petitioner had admitted the second marriage. Except that, there is absolutely no material to show that the second marriage was performed between the petitioner and the said Mumtaz and curiously the first respondent has not filed any charge-sheet against the said Mumtaz. The whole procedure that has been followed in this case is totally irregular and against the provisions contained in Section 198 of the Criminal Procedure Code." 6. The learned counsel placed reliance on the aforesaid decisions and submitted that this is a fit case which should be quashed as otherwise great injustice would be caused to the petitioners. 7. Countering the said statement, the learned counsel for the respondent submitted that in the Complaint there are allegations not only with reference to the offences punishable under Section 494, IPC, but also with reference the offences punishable under Section 498-A and 506(ii), IPC and as such the above quash Petition cannot be entertained. 8. As far as the contentions of the learned counsel for the petitioners regarding the allegations constituting the ingredients for commission of the offence punishable under Section 494 and the two decisions relied on by the learned counsel for the petitioners is concerned, the learned counsel for the respondent is unable to repel the said contentions and the learned counsel is also unable to point out the allegations constituting the ingredients of commission of the offence under Sections 494, IPC. 9. 9. As far as the contention of the learned counsel for the respondent in respect of the offences punishable under Sections 498-A and 506(ii), IPC is concerned, it has to be pointed out that a case was registered in Crime No.5 of 2005 and after completing the investigation, a charge sheet has also been filed in the very same Court. The learned counsel for the Petitioners submitted that the allegations pertaining to the aforesaid offences under Section 498-A and 506(ii), IPC relate to the subject matter of Cr.No.5 of 2005. 10. This Court carefully considered the submissions made by the counsel appearing on either side. 11. As laid down in the aforesaid two decisions referred to by learned counsel for the petitioners, neither in the Complaint nor in the sworn statement there are allegations constituting the ingredients for the commission of the offence under Section 494, IPC. Neither in the Complaint nor in the sworn statement of the respondent the details of the form of alleged second marriage undergone by the first petitioner with the third petitioner, name of the witnesses who are alleged to have witnessed the second marriage and the essential ceremonies which are necessary for performing a valid marriage have been mentioned. 12. In the absence of such vital allegations in the Complaint and in the sworn statement, the learned Magistrate ought not to have taken the Complaint on file as no offence has been made out under Section 494, IPC. Under such circumstances the contentions put forward by the learned counsel for the petitioners merit acceptance and the contentions purforward by the learned counsel for the respondent is liable to be rejected, accordingly rejected. 13. In the result, the above Criminal Original Petition is allowed and all further proceedings in C.C. No.124 of 2005 on the file of the learned Judicial Magistrate, Arakkonam, Vellore District is hereby quashed. Consequently, M.P. No.3 of 2007 is dismissed.