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Karnataka High Court · body

2019 DIGILAW 2320 (KAR)

SHIVAPPA BHIMAPPA v. RASHMI @ RESHMA

2019-12-18

P.G.M.PATIL

body2019
ORDER : These two petitions are filed under section 482 of Cr.P.C., seeking to quash the proceedings in C.C.No.1165/2018, pending on the file of I Addl. Civil Judge and JMFC, Athani, for the offence punishable under section 494 of IPC. Since both the petitions are filed to quash the same proceedings, they are heard together and disposed of by this common order. 2. The brief facts of the case are that, the respondent Rashmi @ Reshma filed a private complaint before the Court below under section 200 of Cr.P.C., against accused Nos.1 to 23 for the offence punishable under sections 498A and 494 of IPC. She has alleged in the complaint that she is the legally wedded wife of accused No.1 Suresh and that their marriage was performed on 21.6.2008 at Alagur village of Jamakhandi taluk in her parental house. She has alleged that accused No.1 subjected her to cruelty and harassment and he rejected her in the family life. She has further alleged that on 9.11.2016, accused No.1 has married 2nd accused stealthily and accused Nos.3 to 23 instigated accused Nos.1 and 2, to perform the said marriage. She has also stated that accused Nos.3 to 23 were present in the second marriage and have taken active participation. Therefore all the accused have committed the offence punishable under section 494 and 498A read with section 34 and also under section 120B of IPC. 3. The trial Court on the basis of the said complaint, took cognizance of the offence under section 494 of IPC against accused Nos.1 to 23 and for the offence punishable under section 498A of IPC against accused No.1 and ordered to issue summons to the accused persons. 4. The petitioners in Crl.P.No.101481/ 2018 have stated that they are arraigned as accused Nos.3 to 5 and 14 to 23 in the complaint, whereas the petitioners in Crl.P.No.101513/2018 have stated that they are arraigned as accused Nos.6 to 10, 12 and 13 in the complaint. The petitioners in both the petitions have further stated that the allegations in the complaint never disclose about the alleged performance of second marriage of accused No.1 with accused No.2. Nothing is stated in the complaint about the solemnization of the second marriage in accordance with Essential Religious Rites applicable to the parties. The petitioners in both the petitions have further stated that the allegations in the complaint never disclose about the alleged performance of second marriage of accused No.1 with accused No.2. Nothing is stated in the complaint about the solemnization of the second marriage in accordance with Essential Religious Rites applicable to the parties. The requirement of section 17 of Hindu Marriage Act, to which the parties belong are not at all stated in the complaint. The learned Magistrate has not applied his mind to the facts and circumstances of the case and thereby committed an error in registering the case and issuing process to the petitioners. Allowing the criminal cases to proceed against the petitioners would amount to abuse of process of Court and therefore initiation of the proceedings against the petitioners is liable to be quashed. 5. Heard the learned counsel for the petitioners and the learned counsel for the respondent, in both the cases. 6. As can be seen from the record, the respondent herein filed a private complaint on the file of I Addl. Civil Judge and JMFC, Athani, against accused Nos.1 to 23. The only allegations in the complaint are that she is wife of accused No.1 and their marriage was performed on 21.6.2008. Thereafter he was harassing her. Then the complainant has directly stated that during her lifetime accused No.1 has married accused No.2 on 9.11.2016. She has only mentioned in the complaint that accused Nos.3 to 23 were present in the said marriage and therefore all the accused have committed the alleged offence under section 494 of IPC. 7. The complainant has cited list of witnesses showing three witnesses and the sworn statement of the complainant and two witnesses were recorded by the learned Magistrate. All these witnesses have stated about the marriage of the complainant with accused No.1 and that they came to know about the alleged marriage of accused No.1 with accused No.2. None of these witnesses have attended the alleged second marriage nor they have observed any of the ceremonies undergone in the alleged second marriage. The complainant has not cited any witnesses who attended the alleged second marriage nor deposed before the Court about the ceremonies undergone in the alleged second marriage and no such witnesses were examined before the Court. 8. The complainant has not cited any witnesses who attended the alleged second marriage nor deposed before the Court about the ceremonies undergone in the alleged second marriage and no such witnesses were examined before the Court. 8. The learned counsel for the petitioners relying on the judgment of this Court in Nagalingappa Tatti and others vs. Bhagyashree in Criminal Petition No.10788/2013, decided on 4.7.2017, submitted that, it is necessary for the complainant to aver in the complaint regarding the role played by each of the accused persons in the alleged second marriage. This Court has observed in paragraph No.8 as follows: 8. But so far as petitioner Nos.2 to 7/accused are concerned, only one line allegation is made in the private complaint that they instigated petitioner No.1 herein for contracting 2n d marriage with accused No.2, except this averment there is no other allegations made specifically about the role played by each of the petitioner Nos.2 to 7 herein, only bald and vague allegations are made in the complain t that they instigated accused No.1 to marry accused No.2. Hence, only on the basis of these averments in the private complaint, it cannot be said that there is prima-facie case as against petitioner Nos.2 to 7 herein. So far as petitioner No.1 herein is concerned, there is an allegation that he married accused No.2. 9. In the case of Basappa S/o.Hanamantappa @ Hanamappa Biradar and others vs. Rajashree W/o.Basappa Biradar, in Criminal Petition No.15739/2012, decided by this Court on 8.1.2013, this Court has held in paragraph No.3 as follows: 3. During the course of enquiry, the complainant gave her sworn statement. Admittedly, she is not the eye witness to the alleged second marriage. According to the complainant, her uncle Basappa Jummanna Hokrani was the eye witness. But the said Basappa Jummanna Hokrani is not examined and his sworn statement is not recorded. The statements of any of the eye witnesses are not recorded. The material on record is not sufficient to issue summons to the accused. Merely on asking, the process cannot be issued. Some prima facie material has to be produced before the Court for issuing summons, other wise, anybody may abuse the process of law. 10. The statements of any of the eye witnesses are not recorded. The material on record is not sufficient to issue summons to the accused. Merely on asking, the process cannot be issued. Some prima facie material has to be produced before the Court for issuing summons, other wise, anybody may abuse the process of law. 10. Therefore it is necessary on the part of the complainant to allege in the complaint as to the performance of the alleged second marriage and examine at least one of the eye witnesses, who attended the alleged second marriage and in the absence of such material, it cannot be held that there is a prima facie case for issuance of summons. 11. Further, in the case of Ashok Kumar Chopra vs. Krishna Kumar, reported in 1991 SCC Online P&H 1034, it has been held that, where the essential ingredients of offence under section 494 of IPC were missing in the complaint as well as the evidence recorded before passing the impugned order and there was nothing to suggest that the accused had contracted a valid second marriage and there were no specific allegations about the essential ceremonies of the alleged second marriage, the proceedings are liable to be quashed under section 482 of Cr.P.C. It is further observed in the said case that, in order to make out a prima facie case for the commission of offence of bigamy, it is necessary to allege form of marriage as well as essential ceremonies required for solemnization of a valid second marriage. 12. In the case of Smt.Priya Bala Ghosh vs. Suresh Chandra Ghosh, 1971 (1) SCC 864 , the Apex Court in paragraph No.16 has observed as follows: 16. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the par ties, it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494, I.P.C. Again in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. 13. 13. Therefore as held by the Apex Court, in order to attract the provisions of section 494 of IPC, the complainant has to allege in the complaint and produce necessary evidence that the second marriage is a valid marriage and that the second marriage has been solemnized so as to attract section 17 of the Hindu Marriage Act. Further, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. 14. Admittedly, in the case on hand, neither there are averments in the complaint to this effect nor the complainant and the witnesses who have given sworn statement before the Magistrate have stated about the performance of the second marriage and that the alleged second marriage of accused No.1 with accused No.2 was performed by following the proper ceremonies as applicable to the parties. Therefore necessary allegations in the complaint or in the sworn statement are not at all produced before the trial Court, in order to make out a prima facie case of offence under section 494 of IPC against these petitioners. 15. So far as the petitioners are concerned, there is only a general allegation that these petitioners were present in the alleged second marriage and they instigated accused Nos.1 and 2 to perform the said marriage. It is stated that the petitioners in Crl.P.No.101513/2018 are relatives of accused No.2, the alleged second wife of accused No.1 and the petitioners in Crl.P.No.101481/2018 are distant relatives of accused No.1. Therefore the complainant has not at all made out any prima facie case against the petitioners for commission of the alleged offence under section 494 of IPC. 16. Per contra, the learned counsel for the respondent relying on the recent judgment of the Apex Court, in the case of M.Jayanthi vs. K.R.Meenakshi and another, in Criminal Appeal No.1817/2019, decided on 2.12.2019, submitted that the form of marriage and the ceremonies followed in the alleged second marriage are matter of trial and this Court cannot quash the proceedings before the complainant adduce her evidence in the case. 17. The learned counsel further submitted that the petitioners have got an opportunity to seek for discharge before the trial Court when the complainant produce her evidence before charge is framed. 17. The learned counsel further submitted that the petitioners have got an opportunity to seek for discharge before the trial Court when the complainant produce her evidence before charge is framed. The Apex Court in paragraph No.13 has held that “a look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged”. Therefore in that case the complainant had incorporated the necessary ingredients for prosecuting the accused for the alleged offences. However in the case on hand, the complainant has failed to incorporate the necessary ingredients of the offence punishable under section 494 of IPC against the petitioners. Nothing is stated about the alleged ceremonies performed in the alleged second marriage nor any of the witnesses, who attended the alleged second marriage were examined. 18. In order to attract the offence punishable under section 494 of IPC, it is necessary for the complainant to place material before the Court that both her marriage with accused No.1 and the alleged marriage of accused No.1 with accused No.2 were performed as valid marriage, as required under section 17 of the Hindu Marriage Act and that all the necessary ceremonies as per the custom of the parties were performed. In the absence of such averments in the complaint, and not being spoken to by the witnesses, it cannot be held that the complainant has made out a prima facie case against the petitioners to continue the proceedings initiated against them. Therefore the proceedings initiated against the petitioners in the present case would amount to abuse of process of law and as such the proceedings against the petitioners are liable to be quashed. Accordingly this Court proceed to pass the following: ORDER Both the petitions filed under section 482 of Cr.P.C. are allowed. The entire proceedings pending in C.C.No.1165/2018, on the file of I Addl. Civil Judge and JMFC, Athani, against the petitioners, for the offence.