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2013 DIGILAW 1739 (RAJ)

Shanker Ram v. State of Rajasthan

2013-09-27

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner Shanker Ram against the order dated 8.8.2011 passed by the learned Sessions Judge, Merta in Revision No. 26/2010 affirming the order dated 7.12.2009 passed by the learned Judicial Magistrate, Degana in F.R. No. 57/2008 arising out of F.I.R. No. 182/2008 taking cognizance against the petitioner for the offence under Section 494/109 I.P.C. 2. Assailing the orders impugned, the learned counsel for the petitioner submitted that the respondents filed a First Information Report against the petitioner for the offences under Sections 323, 498A, 406 and 494 I.P.C. The Investigation Agency upon concluding investigation did not find the offences under Sections 498A, 406 and 323 I.P.C. made out against the petitioner and thus, as the only remaining offence under Section 494 I.P.C. was a non-cognizance offence, a Final Report was submitted in the Court below. He submitted that thereafter, the complainant respondent No. 2 Teeja Devi filed a protest petition and proceedings were undertaking under Sections 200 and 202 Cr.P.C. Learned counsel submitted that the petitioner was married to the complainant respondent No. 2 Teeja Devi in the year 1963. He urged that the petitioner and the respondent No. 2 Teeja Devi got separated more than 20 years prior to the filing of the complaint. He submitted that the complainant in question has been filed for mala fides and oblique motives. The children born form the wedlock have already been married. Learned counsel submitted that the respondent No. 2 contacted from leprosy more than two decades back and thereafter, the parties separated. He submitted that now this complaint has been filed belatedly just for extracting money from the petitioner. 3. Learned counsel submitted that even if the material available on record is accepted as true on the face of record, then too there is no material to hold that the petitioner has committed the offence of bigamy. He submitted that neither the complainant nor any of her witnesses allege to have witnessed the petitioner's second marriage being solemnized. He thus, urged that the order taking cognizance deserves to be quashed. He submitted that neither the complainant nor any of her witnesses allege to have witnessed the petitioner's second marriage being solemnized. He thus, urged that the order taking cognizance deserves to be quashed. Learned counsel for the petitioner has placed reliance on the following decisions in support of his contention that for establishing the offence of bigamy, the proof of the alleged second marriage has to be given by proving the solemnization of the essential ceremonies of the marriage as per Hindu rites and customs. 4. Per contra, Shri P.R. Choudhary learned counsel appearing for the respondent No. 2 Teeja Devi vehemently opposed the submissions advanced by the learned counsel for the petitioner. 5. The respondent No. 3 Shanti Devi is the lady with whom, the petitioner is alleged to have contacted a second marriage. Her counsel, Shri D.K. Gaur supported the contentions advanced by the learned counsel for the petitioner and urged that the respondent No. 3 Shanti Devi has not married the petitioner. 6. Heard and considered the arguments advanced at the bar, perused the order impugned and the record. 7. It is the admitted position from the record that the petitioner and the respondent No. 2 Teeja Devi were married in the year 1965 i.e. 43 years prior to filing of the F.I.R. The respondent No. 2 is reported to have developed leprosy where after, the spouses parted their ways. The children born from the wedlock of the petitioner and Teeja Devi were married more than 20 years prior to the filing of the F.I.R. The Investigating Officer upon conclusion of the investigation arrived at a finding that subsequent to the separation of the spouses due to the disease of leprosy contacted by the respondent No. 2, the petitioner contracted nata with Shanti Devi. However, no witness was examined by the Investigating Officer for establishing that the alleged second marriage of the petitioner was solemnized as per Hindu rites and ceremonies. The complainant filed a protest petition against the Final Report and examined herself under Section 200 Cr.P.C. and three witnesses were examined under Section 202 Cr.P.C. 8. On a careful perusal of the statements of all these witnesses, it is evidence that none of them deposed to have seen or witnessed the second marriage alleged to have been solemnized between the petitioner and the respondent No. 3 Shanti Devi. 9. On a careful perusal of the statements of all these witnesses, it is evidence that none of them deposed to have seen or witnessed the second marriage alleged to have been solemnized between the petitioner and the respondent No. 3 Shanti Devi. 9. Thus, there is no evidence on the record of the case to support the complainant's allegation that the petitioner entered into a valid second marriage with Shanti Devi. It is the bald ipsi dixit of the complainant that the petitioner brought Shanti Devi in Nata. Be that as it may, in absence of any proof of a valid second marriage between the petitioner and the respondent Shanti Devi, the cognizance taken against the petitioner for the offence under Section 494/109 I.P.C., is grossly illegal and amounts to gross abuse of process of the Court. The Hon'ble Apex Court considered the issue of the necessary rites and ceremonies of the second marriage not being proved in the case of Lingari Obulamma v. L. Venkata Reddy, reported in AIR 1979 SC 848 and held as below: "It is well settled that before a conviction can be recorded under Section 494 the following ingredients must be proved - (1) That the complainant had been married to the accused; (2) That the accused contracted a second marriage while the first marriage was still subsisting; (3) That both the marriages were valid and strictly according to law governing the parties. In the instant case there was no evidence to show that there was any custom amongst the Reddys which, outweighed the written text of law. The evidence of PW-1, clearly falls short of the standard to prove this fact. Mr. Rao, however, strongly relied on a decision of the Andhra Pradesh High Court in some other case to show that among the Reddy Community of Teiangana area the two ceremonies mentioned above were not necessary. In the first place the decision referred to above in the case of Re Dolgonti Ragluwa Reddy, (AIR 1968 And Pra 117) clearly shows that the Court in that case was concerned only with the Reddy Community of Teiangana alone. The trial Court has pointed out in its judgment that so far as accused is concerned he belongs to the Reddy Community not of Telangana area, but that of Rayalaseema area. The trial Court has pointed out in its judgment that so far as accused is concerned he belongs to the Reddy Community not of Telangana area, but that of Rayalaseema area. In these circumstances the Judgment of the High Court cannot be of any avail to the appellant. Moreover, as the existence of the custom was neither mentioned in the complaint nor proved in the evidence it would be difficult for this Court to rely on the decision of the High Court which was based on the evidence, facts and circumstances of the case before it. In these circumstances we agree with the High Court that the prosecution had failed to prove that the second marriage contracted by respondent No. 1 with respondent No. 4 was a valid marriage and, therefore, the High Court was fully justified in acquitting the respondents." 10. That part, the complaint filed the complainant is highly belated and highly mala fide as well. The complainant admittedly knew about the alleged second marriage of the petitioner with Smt. Shanti Devi, which is alleged to have been solemnized more than 20 years ago. Thus, there was no justification on the part of the complainant to have filed the complaint after a gross delay of 20 years. 11. Thus, the misc. petition deserves to be accepted and is hereby allowed. The order dated 7.12.2009 passed by the learned Judicial Magistrate, Degana taking cognizance against the petitioner for the offence under Section 494/109 I.P.C. and all subsequent proceedings sought to be taken against the petitioner are hereby quashed.Petition allowed. *******