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2020 DIGILAW 2084 (KAR)

Kantappa v. Lakkawwa

2020-10-20

H.B.PRABHAKARA SASTRY

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JUDGMENT H.B.Prabhakara Sastry, J. - The present petitioners are accused Nos. 1 to 6, 8 and 9 in C.C.No.1265/2015, pending in the Court of the learned Principal Civil Judge and JMFC at Mudhol (hereinafter referred to as 'the trial Court', for short), for the offences punishable under Sections 494 and 109 of the IPC. 2. The 1st respondent is the complainant at whose instance the said criminal case came to be registered. The 2nd respondent herein had filed a private complaint bearing P.C.No.84/2012 in the trial Court under Section 200 Cr.P.C., against nine accused including the petitioners herein, for the offences punishable under Sections 494 and 109 of the IPC. The summary of the said complaint is that; The complainant is the legally wedded wife of accused No.1(petitioner No.1 herein) and during the subsistence of the said marriage and during her life time, the accused No.1 had undergone a second marriage with accused No.2 Smt. Laxmawwa, petitioner No.2 herein, which marriage was actively participated and abetted by remaining accused i.e., accused Nos. 3 to 9. In the very same complaint, the complainant has also stated that, alleging the same offence against the same accused, initially she has instituted a private complaint in P.C.No.168/2009 before the trial Court and the same was posted on 09.03.2012. On the said date, due to the abstinence from the advocates appearing before the said Court, her advocate also did not attend the Court in the matter, as such, on the said day the Court dismissed the complaint for non-prosecution. She has stated that, she came to know about the dismissal of the said complaint with some delay. Therefore immediately after coming to know of dismissal of her earlier complaint, she has presented the present complaint. Thus, in the complaint, the complainant has shown that she is very particular about prosecuting the matter, as such, even after alleged dismissal of the complaint for non-prosecution, she continued her attempt in prosecuting the accused for the alleged offences. 3. The trial Court has taken cognizance and after investigation, the 2nd respondent Police have filed the charge sheet against the accused for the offences punishable under Sections 494 and 109 of the IPC. It is seeking quashing of the said entire proceedings in C.C.No.1265/2015, pending before the trial Court, the above mentioned accused/petitioners have preferred this petition under Section 482 Cr.P.C. 4. It is seeking quashing of the said entire proceedings in C.C.No.1265/2015, pending before the trial Court, the above mentioned accused/petitioners have preferred this petition under Section 482 Cr.P.C. 4. Respondent No.1, who is the complainant, is being represented by her counsel. Respondent No.2 State is represented by the learned HCGP. 5. On 08.10.2020, when this matter came up before this Court, the learned counsel from both side were physically present in the Court and the matter was heard from both side for its final disposal, with consent. 6. Learned counsel for the petitioners reiterated the contentions taken up by him in the memorandum of petition and made a submission that, no materials are there to prosecute the petitioners No.2 to 8 i.e., accused Nos. 2 to 6, 8 and 9, as such, the entire criminal proceedings be quashed as against them. 7. Learned counsel for respondent No.1 in his single sentence argument submitted that, there is no case against petitioners No.2 to 8, as such, the proceedings against petitioners No.2 to 8, pending before the trial Court, be quashed. 8. The order sheet dated 08.10.2020 recorded by this Court in the matter reads as below: "Learned counsel from both side physically present in the Court. Heard arguments from both side. Learned counsel for respondent No.1, who incidentally represents the complainant in the trial Court, in his single sentence argument submits that there is no case against petitioners No.2 to 8, as such, the proceedings against petitioners No.2 to 8 pending in the trial Court be quashed. A perusal of the record would go to show that, the Magistrate has taken cognizance and directed for registration of the case in CC Register No.III against all the accused Nos. 1 to 9 and the offences alleged not just confined to Section 494 of the IPC, but it also includes Section 109 of the IPC. In view of the fact that the alleged offences also includes Section 109 of the IPC, but the learned counsel representing the complainant submits that the proceedings against the present petitioners No.2 to 8, against whom the allegations are made, which are punishable under Section 109 of the IPC be quashed, the Court would like to have the presence of the complainant Smt.Lakkawwa before it. Hence the second respondent through HCGP is directed to keep present the complainant Smt. Lakkawwa before this Court physically on 20.10.2020. The Addl. Hence the second respondent through HCGP is directed to keep present the complainant Smt. Lakkawwa before this Court physically on 20.10.2020. The Addl. Registrar General to enable the said complainant to be present before the Court, however, subject to the SOP formalities." 9. Today, when the matter is taken up, the prosecution (respondent No.2) has kept the original complainant Smt. Lakkawwa, present before the Court. After due identification from her present counsel in this Court, the Court enquired her about the complaint, then she submitted that, honestly believing that the contents of her alleged complaint in the trial Court are true and correct, she has instituted the said complaint. She reiterated that her husband, who is accused No.1, has undergone second marriage with accused No.2 - Sri. Laxmawwa and that marriage was participated actively by the remaining accused i.e., accused Nos.3 to 9, who have also taken active participation in performing the customary rituals in the marriage. 10. The above statement made by the complainant falsifies the submission made by the learned counsel for respondent No.1 on 08.10.2020 before this Court, that there is no case against petitioners No.2 to 8 herein, as such, criminal proceedings against them be quashed. Therefore, it is really shocking that, when a serious allegation, that too in the form of private complaint is made by the complainant in the trial Court, specifically alleging the participation or abetment of the second marriage of accused No.1 with accused No.2 by the remaining accused and specifically mentioning the alleged offences under Sections 494 and 109 of the IPC, how come the learned counsel representing the very complainant gave a clean chit by himself as against the alleged 2nd wife and remaining accused, who are petitioners No.2 to 8 herein. At this stage, learned counsel for the respondent No.1 submitted that, on the said day he did not notice attraction of Section 109 of the IPC in the private complaint, as such, he confined his argument to Section 494 of the IPC only. At this stage, learned counsel for the respondent No.1 submitted that, on the said day he did not notice attraction of Section 109 of the IPC in the private complaint, as such, he confined his argument to Section 494 of the IPC only. The said argument is also not acceptable for the simple reason that, admittedly, he being the counsel for the complainant, had with him the entire case papers including the copy of the private complaint, where at the very arraigning of all the nine accused in the complaint, in the cause title, the complainant has specifically mentioned all offences punishable are under Sections 494 and 109 of the IPC. Generally it is not expected from a legal practitioner to say that he did not notice the allegation leveled against the accused in a criminal case, that too, when he is representing the complainant in the matter. It is also for the reason that, litigants would entrust the matter to them with utmost trust in them that they would go through the entire case papers and present their case effectively. In addition to this, the complainant has alleged only two offences, i.e., the offences punishable under Sections 494 and 109 of the IPC against the accused. As such, it is also not a case where several offences or offences falling under different statues were alleged against the accused. When admittedly the allegation of bigamy could have been made against accused No.1 alone then obviously the alleged role of the remaining accused for the said offence naturally goes to the mind, as such also when there are several other accused than the accused No.1, one needs to consider as to their alleged role in the alleged offence of bigamy. As such also the attraction of any other incidental or consequential offences, if any, would naturally come to the foreground for thinking. It is for this reason I was a bit surprised to hear from the learned counsel for the respondent No.1 that he did not notice the allegation attracting Section 109 of IPC made in the complaint. Recital of the complaint also mentions about the alleged participation and involvement of accused nos. 3 to 9 in the alleged second marriage of accused No.1 with accused No.2. Recital of the complaint also mentions about the alleged participation and involvement of accused nos. 3 to 9 in the alleged second marriage of accused No.1 with accused No.2. As such, the counsel appearing for a particular complainant, at a later stage, stating that he did not notice an offence alleged against the accused in the private complaint is really a heavy submission which this Court finds it very difficult to digest. 11. Suffice it to say that, a perusal of the complaint and her sworn statement would go to show that, the complainant specifically made a mention that, accused No.1 had underwent second marriage with accused No.2 during the life time of the complainant, who is said to be the legally wedded first wife of the accused No.1. The complaint describes the individual role of each of the petitioners/accused in the alleged second marriage of the petitioner No.1 with petitioner No.2. In such a situation, I do not find any reason to accept the argument of the learned counsel for the petitioners that there is no material to proceed against the petitioners, more particularly, the petitioners No. 3 to 9 herein. As such, I proceed to pass the following: ORDER The petition is dismissed.