Dr. Jayakumar @ Javid Kamal vs State and M. Vijayalakshmi

K. Mohan Ram, J.—The learned Counsel for the petitioner submits that the petitioner has come forward with this petition to call for the

records in C.C. No. 123 of 2006 on the file of the Judicial Magistrate No. II, Chengalpattu, pending trial, and quash the same.

The petitioner, who is facing trial in C.C. No. 123 of 2006 on the file of the Judicial Magistrate No. II, Chengalpattu, for an offence u/s 494

IPC, has filed the above criminal original petition seeking to quash all further proceedings in C.C. No. 123 of 2006. Though the petitioner has

taken several grounds and has pointed out certain irregularities in the registration of the complaint, in the investigation of the case and taking

cognizances, etc., this Court is not going into all those aspects, as the above criminal original petition can be disposed of on the ground that even

taking the allegations contained in the complaint filed by the second respondent and the averments contained in the statement of witnesses to be

true, in the considered view of this Court, no case is made out for registering a case u/s 494 IPC.

Learned Counsel for the petitioner submitted that under the charge of Bigamy, if the evidence showed that the essential ceremonies have not

been performed, it cannot justify the conviction even though admitted by the accused. He further submitted that the prosecution must prove that the

second marriage was duly performed in accordance with religious rites applicable to the form of marriage and an admission by the accused in this

respect cannot be made the basis of conviction.

Learned Counsel for the second respondent submitted that the written complaint was given by the second respondent alleging that the petitioner

had married her as per Hindu Customary Rites on 27.06.1982 and two children were born out of their wedlock; thereafter leaving her alone he left

for Dubai; after 15 years he came back and pleaded pardon from her and requested her to come to Chennai; she went to his house at

Urapakkam; there she came to know that without divorcing her he had contracted a second marriage with one Mumtaz secretly and he was living

with her as her husband; when questioned, the petitioner is said to have told that she should not talk about his second wife; that is the gist of the

complaint given by the second respondent and on the basis of the complaint the first respondent had obtained a legal opinion from the Additional

Public Prosecutor and got permission from the learned Judicial Magistrate and registered a case u/s 494 IPC and after completing the investigation

has filed a charge sheet. But however the learned Counsel is unable to point out the necessary allegations either in the complaint lodged by the

second respondent or in the statement of witnesses recorded in the course of investigation which constitute the ingredients attracting the

commission of an offence u/s 494 IPC. However the learned Counsel submitted that the allegations contained in the complaint disclose the

commission of an offence of cheating.

Learned Government Advocate (Crl. Side) submitted that the case had to be registered as per the directions issued by this Court in Crl.O.P.

No. 26747 of 2004 and the final report was also filed pursuant to the directions issued by this Court in Crl.O.P. No. 18756 of 2005. He further

submitted that the case was not registered merely on receipt of the complaint from the second respondent, but the case was registered only after

getting permission from the learned Judicial Magistrate.

I have carefully considered the above said submissions made by the learned Counsel on either side. At the outset, it has to be pointed out that a

perusal of the complaint lodged by the second respondent does not contain any averments constituting the ingredients for the commission of an

offence u/s 494 IPC. As rightly contended by the learned Counsel for the petitioner that under the charge of Bigamy, if the evidence showed that

the essential ceremonies have not been performed cannot justify the conviction even though admitted by the accused and that the prosecution must

prove that the second marriage was duly performed in accordance with religious rites applicable to the form of marriage and an admission by the

accused in this respect cannot be made the basis of conviction. A perusal of the statement of witnesses recorded u/s 161 of the Criminal

Procedure Code during the course of investigation also shows that the necessary averments constituting an offence u/s 494 IPC are conspicuously

absent. The witnesses have simply stated that the petitioner had admitted to the complainant that he had married Mumtaz. Such a statement alone

cannot be the basis for framing a charge u/s 494 IPC. As laid down in the decision reported in 1966 M.L.J. 151 (SC) (Kanwal Ram v. Himachal

Pradesh Administration) under the charge of Bigamy, if the evidence showed that the essential ceremonies have not been performed it cannot

justify the conviction even though admitted by the accused. Here there is no such direct admission on the part of the petitioner, but the second

respondent in her statement had stated that as if the petitioner had admitted the second marriage. Except that, there is absolutely no material to

show that the second marriage was performed between the petitioner and the said Mumtaz and curiously the first respondent has not filed any

charge sheet against the said Mumtaz. The whole procedure that has been followed in this case is totally irregular and against the provisions

contained in Section 198 of the Criminal Procedure Code.

In such view of the matter, the above criminal original petition has to be allowed and accordingly allowed and all further proceedings in C.C.

No. 123 of 2006 on the file of the Judicial Magistrate No. II, Chengalpattu, is hereby quashed. Consequently the connected MP is closed.