Amit Kumar Muljibhai Brahmbhatt and Another vs State of Gujarat

A.N. Divecha, J.—The petitioners have moved this Court u/s 482 of the Criminal Procedure Code, 1973 (''the Cr. P.C.'' for brief) for

quashing the criminal complaint inter alia lodged against them by respondent No. 2 herein in the Court of the Metropolitan Magistrate of Court No.

3 at Ahmedabad charging all the accused including the petitioners named therein as accused Nos. 3 and 4 with the offence punishable u/s 494 read

with Section 114 of the Indian Penal Code, 1860 (''the IPC'' for brief).

The facts giving rise to this petition are not many and not much in dispute. Respondent No. 2 claims to have married one Mukesh Kumar

Chhatrasinh some 7 years ago. According to her, during the subsistence of her marriage with her husband, he contracted a second marriage with

one Gitaben Bhallalbhai Barot who is arraigned as accused No. 5 in the complaint. According to respondent No. 2, the other accused including

the mother of the husband and the father of accused No. 5 and the present petitioners and one Ratilal Ishwarbhai abated the commission of the

offence by the husband of respondent No. 2. With these allegations, she lodged one complaint before the Metropolitan Magistrate of Court No. 3

at Ahmedabad. It came to be registered as Criminal Case No. 664 of 1991. It appears that the learned Metropolitan Magistrate issued process

against all the accused including the present petitioners. The present petitioners have invoked the powers of this Court u/s 482 of the Cr. P.C. for

quashing the complaint lodged by respondent No. 2 as aforesaid qua them on the ground that the complaint does not disclose commission of any

offence by them.

A copy of the complaint is annexed as Annexure-A to this petition. The petitioners herein are arraigned as accused Nos. 3 and 4. It appears

that they have been roped in on the ground that they were present at the time of the second marriage. It may be mentioned that the complaint

merely mentions that these petitioners knew that the marriage between the complainant and accused No. 1 was subsisting at the time of the second

marriage. It is nowhere suggested in the complaint that these petitioners were present at the time of the complainant''s marriage with accused No. 1

at the relevant time. It is difficult at this stage to attribute the knowledge of the first marriage to the present petitioners. Besides, as aforesaid, the

present petitioners are charged with the abatement of bigamy merely on the ground that they were present at the time of the second marriage. A

vague allegation is made in the complaint that they directly or indirectly brought about the second marriage of accused No. 1 with accused No. 5.

It would be difficult to fasten any criminal liability to these petitioners only on the strength of such vague allegation and on their mere presence at the

time of the second marriage.

In this connection a reference deserves to be made to the ruling of the Supreme Court in the case of Smt. Chand Dhawan Vs. Jawahar Lal and

others, . That was also a case of bigamy. The accused succeeded in getting the proceedings quashed before the High Court of Punjab and

Haryana. On appeal to the Supreme Court, the judgment of the High Court quashing the proceedings was quashed only qua the two main accused

and not qua those who were arraigned as the accused on the ground of their mere presence at the time of the second marriage. The relevant

observations are in para 9 of the reported ruling at page 322. They read as under :

We are, therefore, of the view that the High Court has clearly erred in reaching the conclusion that the proceedings are liable to be quashed. In the

light of the allegations made in the complaint and the materials produced in support of those allegations by the appellant before the Magistrate, the

issue of the process to respondents 1 and 2 who are alleged to have solemnised the second marriage during the subsistence of an earlier valid

marriage of the appellant is proper and when process has been issued, the proceedings have to continue in accordance with law against these

respondents 1 and 2. So far as other respondents are concerned, it may be said that they had been unnecessary and vexatiously roped in. The

allegations in the complaint so far as these respondents are concerned are vague. It cannot be assumed that they had by their presence or

otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting. The explanation of the first

respondent that the second respondent has been functioning as a governess to look after his children in the absence of the mother who had left

them implies that respondents 1 and 2 are living together. In this background, the allegations made against respondents 3 to 7 imputing them with

guilty knowledge unsupported by other material would not justify the continuance of the proceedings against those respondents.

This ruling of the Supreme Court is on all fours applicable in the present case.

An reference also deserves to be made to the ruling of the Bombay High Court in the case of Malan and Others Vs. State of Bombay and

Another, . It was also a case of the criminal proceedings for bigamy. Certain accused were sought to be roped in only on the ground of their mere

presence at the time of the second marriage. It has been held therein :

Mere presence at the commission of a crime even with the awareness that a crime was being committed is not in itself an international aid.

The ruling of the Supreme Court in the case of Dhanalakshmi Vs. R. Prasanna Kumar and Others, as relied on by Shri Gupta for respondent

No. 2 is of not much assistance in this case. It appears that in that case the complaint together with the statement on oath of the complainant prima

facie disclosed ingredients of the offence of bigamy. It appears that all the other accused were not merely involved oh the ground of their presence

alone at the time of the second marriage. In that view of the matter, the aforesaid ruling of the Supreme Court in the case of Mrs. Dhanalakshmi

(supra) is distinguishable on its own facts.

The ruling of the Supreme Court in the case of K.M. Mathew Vs. State of Kerala and another, is also distinguishable on its own facts. It does

lay down as a rule of law that the trial Magistrate does have a power to drop the proceedings even after the process is issued if the Trial Court is

approached by the accused for the purpose. It however does not lay down as a rule of that no proceedings for quashing a complaint can be

entertained even if the complaint does not prima facie disclose commission of any offence by the concerned accused.

In view of my aforesaid discussion, I am of the opinion that no offence is found to have been committed by the present petitioners so far as

Criminal Case Mo. 664 of 1991 is concerned. The criminal proceedings against them therefore deserve to be quashed.

In the result, this petition is accepted. The proceedings by means of Criminal Complaint No. 664 of 1991 pending before the Metropolitan

Magistrate of Court No. 3 at Ahmedabad are hereby quashed qua these petitioners. This judgment of mine will no preclude the Trial Court to

proceed against the present petitioners u/s 319 of the Cr.P.C. if necessary. Rule is accordingly made absolute.