Kishanpal and others vs Jas Rani

V.S. Aggarwal, J.

By this order, I propose to dispose of two petitioners Criminal Misc. Nos. 568M of 1994 and 4210M of 1994. In both the petitions the prayer is pertaining to quashing of the Criminal complaint and summoning order passed by the Judicial Magistrate 1st Class, Batala. The facts are substantially identical and the impugned order of the learned Judicial Magistrate is common. Therefore, both the petitions can be disposed of together.

Jas Rani respondent was married to Kishanpal petitioner in September, 1981. Out of their wedlock they have two sons. One is staying with the respondent, Ram Lal and Krishan (petitioners No. 2) is the father of Kishanpal.

Jas Rani filed criminal complaint in the Court of Judicial Magistrate, Batala with respect to offences punishable under Sections 494/109 I.P.C. against the petitioners complaining that Kishanpal, Ram Lal and Krishna were not satisfied with the dowry articles and they had been harassing the respondent and torturing her. Ultimately she was turned out of her matrimonial house. When she became physically handicapped because of the accident. The father of the respondent approached her husband and Ram Lal father of Kishanpal to keep the respondent but they flatly refused and in the 1st week of March, 1993, father of the respondent learnt that Girdhari Lal and Bimla (accused) were negotiating with the petitioner Kishanpal for second marriage. The marriage of Kishanpal was to be solemnized with one Rani. Thereupon the respondent in the company of her father besides Bahadur Singh, Kundan Lal and others went to Kanwan on 28th March, 1993 and at the time of arrival of the marriage party, they raised hue and cry that Kishanpal was already married with the respondent and his first wife was alive. Despite this, the second marriage was solemnized, with Rani according to Hindu rites and all formalities of legal marriage were gone through. Besides the above mentioned petitioners (petitioners in Criminal Misc. No. 568M of 1994) Rani, her father Harbans Lal, Girdhari Lal and Bimla were also arrayed as accused. It was alleged that they all abetted and facilitated the second marriage knowing fully well that the first wife of Kishanpal was alive.

Learned Judicial Magistrate 1st Class, Batala summoned all the petitioners as accused persons with respect to the offences punishable under Sections 494/109 IPC. The petitioners seek quashing of the complaint and summoning order dated 14.12.1993.

There is a catena of judicial pronouncements on the subject. It is settled law that a complaint could be quashed only when the allegations in it did not constitute an offence or inherent powers should be exercised to prevent the abuse of the process of the Court to secure the ends of justice. The Supreme Court in the case of Smt. Chand Dhawan v. Jawahar Lal, 1992(3) Recent Criminal Reports 534 : 1992 Crl. L.J. 1956 in this regard laid down the following guidelines :

"This Court has in various decisions examined the scope of the power under Section 482 Cr.P.C. and has reiterated the principle that the High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the complaint do not constitute an offence, or that the exercise of the power is necessary either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such power should be exercised. When the allegations in the complaint prima facie constitute the offence against any or all of the respondents in the absence of materials on record to show that the continuance of the proceedings would be an abuse of the process of the Court or would defeat the ends of justice, the High Court would not be justified in quashing the complaint."

It is in this background that the facts recorded above have to be appreciated.

On behalf of the petitioners their respective counsel laid a great stress on the fact that there was no sufficient materials before the Court to proceed against them as it was not proved that Kishanpal had married Rani. There was no dispute that respondent was the legally wedded wife of KishanpaL It has been further asserted that in this case there was no material to proceed against the petitioners regarding the commission of offence of abetment which was stated to have committed by them.

Under the Criminal Procedure Code process could be issued if the committing Magistrate prima facie finds that there is sufficient ground for proceeding. Prima facie view does not mean ultimate eye on the conviction or acquittal of the accused. The Code of Criminal Procedure makes obligatory on the part of Magistrate to make necessary application of judicial mind and to take evidence on record and other material into consideration. The expression "sufficient ground for proceeding" implies that prima facie case is said to have been made out. At the initial stage necessarily the Magistrate has to satisfy himself as to whether there is sufficient ground for proceeding. The Supreme Court in the case of Chandra Deo Singh v. Parkash Chand Bose @ Chabi Bose and another, AIR 1963 SC 1430 was examining the similar question. It concluded that only prima facie view is to be formulated and the defence, if any, of the accused is to be left to be decided at the proper stage. In paragraph 12 it was held :

"Thus, where there is a prima facie case, even though much can be said on both sides, a committing Magistrate is bound to commit an accused for trial. All the greater reason, therefore, that where is prima facie evidence, even though an accused may have a defence like that in the present case that the offence is committed by some other persons or persons the matter has to be left to be decided by the appropriate forum at the appropriate stage, and issue of process cannot be refused."

To assert that it is not shown in terms that second marriage has been constructed by Kishanpal with Rani for the purpose of the present order will not be correct. The line of argument was that there is no ground to show that the second marriage was contracted in accordance with customs and Hindu Rites.

Section 7 of the Hindu Marriage Act, 1955 runs as under :

"Ceremonies for a HIndu Marriage. (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapdi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."

The provisions reproduced above show that the Hindu marriage could be solemnized in accordance with the customary rites and ceremonies. Where the seven steps have to be taken before the sacred fire by the bridegroom and the bride, the marriage is said to be complete when seven steps are taken. In the present case every ceremony of marriage was allegedly complied with. In spite of the protest of the respondent and other persons, the marriage of Kishanpal with Rani was solemnized according to Hindu rites and all the formalities of the legal marriage were gone through. This is clear assertion of fact. It had to be determined subsequently as to whether the said fact is proved or not. At this stage one cannot be expected to meticulously examine the clear and unambiguous assertion that despite the protest of respondents, Kishanpal and Rani were married according to Hindu rites. Thus the argument looks all its thrust.

My attention was drawn to certain precedents in this regard. In this case of Shanti Deb Verma v. Smt Kanchan Prava Devi, AIR 1991 SC 816, the Supreme Court held that performance of Saptapadi has not been proved. The order and complaint was quashed. Similarly in the case of Amarjit Kaur v. Ranjit Singh Sarao, 1992(2) RCR 47 , the Division Bench of this Court held that second marriage had not been proved. Without evidence no consequence would follow even if the parties were living as husband and wife,

Both these decisions will not come to the rescue of the petitioners because in the cases referred to above, the finding had been recorded after appreciating some evidence before pronouncing the orders. But in this petition once prima facie case is made out, the question of quashing the present proceedings does not arise.

Faced with this situation it was alleged that it can be held on the basis of material on the record that there was abetment of the offence. Abetment of a thing has been explained in Section 107 of the Indian Penal Code in the following words :

Abetment of a thing : A person abets the doing of a thing, who

First: Instigates any person to do that thing; or

Second: Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that

Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done is said to instigate the doing of that thing.

Explanation 2. Whoever either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."

Relying upon the aforesaid, the learned counsel appearing for petitionerRani urged that his client was not even aware as to whether Kishanpal was already married and therefore question of abetment of the offence by her punishable under Section 494 I.P.C. does not arise.

At the outset it can well be mentioned that explanation of Section 107, I.P.C. makes it clear that however either prior to or either at the time of commission of offence does anything in order to facilitate the commission of offence would be said to aid the doing of that act. It is not necessary that there should be prior knowledge or the earlier knowledge. Aiding the doing of the offence must snow ball into "intention aiding of doing of a thing". The definition of abetment in section 107 I.P.C. includes not only material instigation which is normal form of abetment but also aiding. In the absence of any material that he had instigated may not be abetment. But where there is evidence to show that such persons acted and aided in the commission of the offence, it would be abetment. This observation is to be dealt with in the light of facts of the case. When it came to the notice of the respondent that Kishanpal had contracted second marriage with Rani, she along with her father and others went to village Kanwan. They raised hue and cry that first wife of Kishanpal is alive. Despite that the marriage of Kishanpal was solemnized with Rani. If at that time Rani or petitioners Harbans Lal, Girdhari Lal, Smt. Bimla who were alleged to be present and made familiar of first marriage did not desist, it must be taken as abetment and are liable for offence punishable under Section 494 I.P.C.

During the course of arguments even the respondent''s counsel has conceded that against Krishna there was no material and therefore, the proceedings against her deserves to be quashed.

As a result of the reasons given above, as against Krishna the complaint and subsequent proceedings are quashed but petitions qua other petitioners fail and are dismissed.