Dinesh Singh and Others vs State of U.P. and Another

Saroj Bala, J.—By means of this application u/s 482, Cr.P.C. the applicants have prayed for quashing the summoning order dated 20.3.2001 and the further proceedings of complaint case No. 17 of 2001, Anil Kumar v. Dinesh Singh, pending in the Court of Civil Judge (J.D.)/J.M., Sonbhadra.

The facts giving rise to these proceedings are:

A criminal complaint (case No. 533 of 2000) was instituted on 5.7.2000 by the opposite party No. 2 with the allegations that sister of opposite party No. 2 was married to Dinesh Singh (applicant No. 1) in March 1995 in accordance with Hindu rites and customs. It was alleged that dowry and gifts were given by the father of the opposite party No. 2 at the time of marriage according to his financial capacity. A week after the marriage sister of opposite party No. 2 was harassed by the applicants for bringing insufficient dowry and was turned out of the marital home. The opposite party No. 2 along with his father went to her marital home to reason with the applicants but they refused to keep her. The case for maintenance was instituted by the sister of opposite party No. 2 in the Court of Civil Judge (J.D.)/J.M., Robertsganj, Sonbhadra. On May 4, 2000, Onkar Nath Singh, relative of opposite party No. 2 informed that applicant No. 1 in conspiracy with accused-applicant Nos. 2 to 5 was going to solemnize second marriage with Santosh Kumari, daughter of Jata Shanker Singh R/o Soneversa. The opposite party No. 2 along with his father and witnesses Onkar Nath Singh and Kuwar Singh reached at the spot and found the applicants and many other people sitting at the marriage venue. The opposite party No. 2, his father and relatives asked the applicants not to solemnize second marriage but they criminally intimidated them and forcibly prevented them from going to the police station and allowed them to leave the place after the second marriage was over. It was alleged that the applicant Nos. 2 to 5 solemnized the second marriage of applicant No. 1 knowing fully well that the first wife of the applicant was alive. After recording the evidence of complainant u/s 200, Cr.P.C. and of witnesses Onkar Nath Singh (C.W. 1) and Kuwar Singh (C.W. 2) u/s 202, Cr.P.C., the Judicial Magistrate, Robertsganj being satisfied that prima facie case was made out issued process on 20.3.2001 u/s 204, Cr.P.C. summoning the applicants for the offences punishable under Sections 494/109, I.P.C.

The summoning order find further proceedings of complaint case have been challenged on the grounds that in the complaint and statements of the complainant and witnesses there is no whisper about the ceremonies taken place at the time of solemnization of alleged second marriage. The proof of valid second marriage lacking no offence was made out against the applicants. According to the applicants invocation before sacred fire and Saptapadi are essential for a valid marriage. In the instant case there are no averments about the performance of these two ceremonies. The contention of the applicants is that mere allegations about performance of second marriage was not sufficient to constitute the offence of bigamy. According to the applicants the place of second marriage being village Soneversa, P.S. Manda, District Allahabad, the Court at District Sonbhadra had no jurisdiction to take cognizance. There being no allegation in the complaint that sister of opposite party No. 2 was permanently residing in village Banardewa, P.S. Karma, District Sonbhadra summoning order passed by the Judicial Magistrate, Sonbhadra was without jurisdiction.

The opposite party No. 2 filed counter affidavit stating that at the stage of summoning the Magistrate had to prima facie satisfy that the offence was made out. According to the opposite party his sister is residing at her father''s house after being deserted by her husband applicant No. 1. The opposite party No. 2 has stated that applicant No. 1 entered into second marriage during the lifetime of his first wife and is living with his second wife.

The applicants in their rejoinder affidavit have stated that subjective satisfaction of the Court has to be based on evidence. On the basis of evidence available on the record it cannot be said that applicant No. 1 has entered into second marriage. It is stated that there is no evidence that marriage of Dinesh Singh applicant No. 1 was legally solemnized with another woman.

Heard Mr. Sanjay Kumar Singh, learned Counsel for the applicants, Mr. Rajiv Lochan Shukla and Devesh Vikaram, learned Counsel for the opposite party No. 2, learned A.G.A. and have perused the record.

The learned Counsel for the applicants submitted that the allegations made in the complaint do not make out the commission of offence u/s 494, I.P.C. There are material contradiction in the statements of the complainant and witnesses going to the very root of their testimony. The complaint was instituted two months after the alleged performance of second marriage and the delay has not been satisfactorily explained. It was further submitted that according to the complaint the second marriage took place on 5.5.2000 whereas the witnesses deposed that it was solemnized on 4.5.2000. The statement of the complainant was silent on the point as to when he reached the spot. The ceremony of Saptapadi having not taken place, the marriage was incomplete and no presumption of second marriage can be drawn. The learned Counsel placing reliance on the decisions in Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh 1971 SCC (Cri) 362 . and Lingari Obulamma Vs. L. Venkata Reddy and Others, argued that essential ceremonies such as Saptapadi with enchantment of Mantras have to be performed to constitute the offence u/s 494, I.P.C. The learned Counsel relying on the decision of Mis. Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors. (36) 1998 ACC 20, argued that there being no material against the applicants the summoning order can be quashed by this Court by invoking its inherent jurisdiction. It was submitted that the offence having taken place within the territorial limit of District Allahabad and there being no averment that the sister of the opposite party No. 2 permanently settled at Sonbhadra, Judicial Magistrate had no territorial jurisdiction to entertain the complaint in view of Section 182(2), Cr.P.C.

Section 182(2), Cr.P.C. provides that any offence contemplated u/s 494 or Section 495, I.P.C. may be enquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage or the wife by the first marriage has taken up permanent residence after the commission of the offence.

The allegations made in the complaint are that sister of opposite party No. 2 after being turned out of her marital home came to his residence and is residing there. In the statement u/s 200, Cr.P.C. the complainant stated that his sister is residing at his residence after being turned out of the marital home. The witnesses Onkar Nath Singh (C.W.I) and Kuwar Singh (C.W.2) categorically stated in their statements u/s 202, Cr.P.C. that Rita Devi the first wife of applicant No. 1 was residing at her parental home since after she was deserted by her husband for demand of dowry. The sister of opposite party No. 2 after being deserted by her husband, applicant No. 1, is residing permanently with her parents and other family members within the local jurisdiction of the Courts at '' Sonbhadra, the Judicial Magistrate, Robertsganj, Sonbhadra had jurisdiction to entertain the complaint and to take cognizance for the offence u/s 494, I.P.C.

The applicant No. 1 has not denied his first marriage with Rita Devi, sister of opposite party No. 2. The opposite party No. 2 as well as witnesses Onkar Nath Singh (C.W. 1) and Kuwar Singh (C.W. 2) stated that Rita Devi, sister of opposite party No. 2 was married to Dinesh Singh, son of Ram Chandra Singh in accordance with Hindu rites and customs. On the face of the evidence adduced the validity of marriage of Rita Devi, sister of opposite party No. 2 with Dinesh Singh, applicant No. 1 cannot be questioned.

The complainant Anil Kumar Singh and witnesses (C.W. 1 and C.W. 2) deposed that when they reached at the spot the second marriage of Dinesh Singh, applicant No. 1 was being solemnized with Santosh Kumari, daughter of Jata Shanker Singh residence of village Sonevarsa. The submission that second marriage of applicant No. 1 with Santosh Kumari was solemnized in accordance with requisite ceremonies, usage or custom cannot be determined at this stage. The submission that the second marriage should be held to have not been proved cannot be raised at this stage as it can be determined only at the stage of trial after adduction of evidence. The scope of inquiry u/s 202, Cr.P.C. is confined to finding out the truth or otherwise of the allegations made in the complaint in order to issue process u/s 204, Cr.P.C. The inquiry at the stage of Section 202, Cr.P.C. does not envisage full dress trial which can take place after the issuance of process and framing of charges. At the stage of inquiry u/s 202, Cr.P.C. the Magistrate has to satisfy himself on the basis of evidence adduced by the complainant whether prima facie case is made out against the proposed accused for a regular trial.

In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , the Apex Court held as under:

It would thus be clear from the two decisions of this Court that the scope of the inquiry u/s 202 of the Code of Criminal Procedure is extremely limited � limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint � (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.

In Mohinder Singh Vs. Gulwant Singh and others, The Apex Court has held as follows:

The scope of inquiry u/s 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not u/s 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the inquiry at that stage does not partake the character of full dress trial which can only take place after process is issued u/s 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the inquiry contemplated u/s 202 of the Code. To say in other words during the course of the inquiry u/s 202 of the Code, the Inquiry Officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed inquiry is called for during the course of such inquiry.

This Court while exercising the inherent jurisdiction cannot examine the question of sufficiency of evidence for conviction of the offence of bigamy. In paragraph 8 of the rejoinder affidavit filed by Ram Chandra Singh, the applicant No. 2 it has been stated that there is no evidence that marriage of Dinesh Singh was legally solemnized with another lady. The applicant No. 2 is the father of Dinesh Singh, the applicant No. 1, husband of sister of opposite party No. 2. The averments made in paragraph 8 of the rejoinder affidavit amount to admission of solemnization of second marriage. However, the validity of the marriage has been challenged. The accusations made in complaint and evidence of complainant and witnesses are prima facie sufficient for proving the performance of marriage of Dinesh Singh applicant No. 1 with Santosh Kumar during the life-time of his first wife, the sister of opposite party No. 2. The decisions relied on behalf of the applicants in relation to celebration of marriage with proper ceremonies were pronounced in criminal appeals directed against the judgments and order of conviction and sentence. The present case is at the threshold. On thorough scrutiny of the material brought on record there was sufficient evidence to proceed against the applicants for the offence under Sections 494/109, I.P.C. and the Magistrate concern committed no illegality by summoning the applicants. Consequently, the application deserves dismissal.

The application u/s 482, Cr.P.C. is dismissed.