Mahantesh and Others vs State of Karnataka and Others

K.N. Phaneendra, J.—Petitioners, who arraigned as Accused Nos. 1 to 13 in P.C. No. 14/2013, which is later registered as C.C. No. 209/2014 for the offence punishable under Section 494 r/w. 109 of IPC, have approached this Court seeking quashing of the entire proceedings.

I have heard the arguments of the learned counsel appearing for the petitioners as well as the learned HCGP appearing for Respondent No. 1 and the learned counsel appearing for Respondent No. 2. I have carefully perused the records.

The 2nd respondent-Shanthamma @ Shanta filed a private complaint before the JMFC, Shorapur against the petitioners herein for the offence punishable under Section 494 r/w. Section 109 of IPC. The learned Magistrate took cognizance of the complaint and recorded the sworn statement of the complainant and witness Basalingappa and thereafter issued process against the petitioners herein. The complaint averments discloses that the complainant is the wife of Petitioner No. 1 (A1). Petitioner No. 2 (A2) is the second wife of Petitioner No. 1. It is contended that the complainant is the legally wedded wife of Petitioner No. 1 having their marriage taken place on 25.05.2005 as per the customs prevailing in their community and their marriage was not dissolved and subsisting as on the date of the alleged offence committed by the petitioners. It is also contended that Petitioner No. 1 in collusion with Petitioner Nos. 3 to 13 taking undue advantage of the absence of the complainant on 21.04.2011 at about 12.30 p.m. in Chowdeshwari Temple at Sindagi Taluk, Bijapur District, illegally got married the 2nd petitioner without the consent and behind the back of the complainant by following all the requisite religious formalities including tying of Tali to the neck of Petitioner No. 2. It is further contended that all the other accused namely, Accused Nos. 3 to 13 have actively took part in performing the second marriage of Accused No. 1. Accused Nos. 3 to 6 are aware that the complainant is the legally wedded wife and her marriage with Accused No. 1 is subsisting as on the date of the incident and the marriage between Accused Nos. 1 and 2 is the second marriage and it is an illegal marriage. It is further contended that by knowing the above facts, Accused Nos. 3 to 13 have also participated in the second marriage of Accused No. 1 with Accused No. 2, therefore, they also responsible as they abetted the commission of the offence by Accused No. 1.

The sworn statement of the complainant shows that she was not present at the time of the marriage. She came to know about the marriage through Basalingappa about one month after the marriage. Therefore, the evidence of Basalingappa play a dominant role. P.W. 2-Basalingappa has stated that on the date of the marriage on 21.05.2011 at about 12.30 p.m., he had been to Chowdeshwari Temple and Accused Nos. 1 and 2 along with Accused Nos. 3 to 13 were there in the said Chowdeshwari Temple. The witness asked Accused No. 1 as to why he is getting second marriage and in spite of he telling that he should not marry again and take second wife, Accused No. 1 tied Tali to Accused No. 2 in his presence and all the Accused Nos. 3 to 13 were participated in the marriage and performed the marriage, thereby they have also committed the aforesaid offence.

On perusal of the complaint averments as well as the statement of the witnesses, there is no specific averment regarding what was transpired between Accused Nos. 3 to 13 and Accused Nos. 1 and 2, and what exactly the role played by them during the marriage and also prior to or after the marriage. Except stating that they participated in the marriage and performed the marriage, nothing has been spelt-out about the specific roles played by them in such alleged marriage to attract abetment of the offence by them. In a very casual manner in one sentence in the complaint and also in the statement of P.W. 2, it is stated that they were all present in the marriage and participated actively in the marriage. There should be some semblance of material to show that they have instigated or facilitated in any manner Accused No. 1 to get second marriage during the subsistence of the marriage between Respondent No. 2 and Petitioner No. 1. In the absence of any such materials, if the complaint averments are too casual in nature and the complaint averments are not so sufficient to constitute any offence, if the complaint is ordered to be continued against all of the accused persons, it would amount to abuse of process of the Court.

Hon''ble Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 : (1992) CriLJ 527 : (1990) 4 JT 650 : (1990) 2 SCALE 1066 : (1992) 1 SCC 335 Supp : (1990) 3 SCR 259 Supp , has laid down certain principles, wherein it is observed that on a meaningful understanding of the complaint averments as well as the statement of the witnesses or the FIR, if the Court is of the opinion that the allegations are not sufficient to constitute any offence, then the Court has to quash such proceedings. Even when the allegations as narrated in the complaint are accepted and if no ordinary prudent man can come to the conclusion that the allegations are sufficient to proceed against all the accused, in such circumstances also the proceedings have to be quashed. Further, added to that if the complaint is filed without any basis and it is filed due to vengeance against the accused persons and if it is prima facie available on record, then also the Court should not hesitate to quash such proceedings. The above said principles are very much applicable to the facts and circumstances of this particular case.

Section 109 of IPC prescribes punishment to abetment and Section 107 defines what amounts to an abetment. In order to constitute an offence under Section 109 of IPC, the ingredients of Section 107 of IPC have to be available in the complaint or in the FIR. Sections 107 and 109 reads as under:--

"Sec. 107. Abetment of a thing,--A person abets the doing of a thing, who-

First- Instigates any person to do that thing; or

Secondly- 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 conspiracy, and in order to doing of that thing; or

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 facilitate the commission thereof, is said to aid the doing of that act."

Sec. 109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment,-Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation,- An act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment."

In order to attract the above said provision there should be an instigation for doing a particular act or persons should have engaged themselves with one or more other persons in any conspiracy for the purpose of doing that act or an illegal omission takes place in pursuance of the conspiracy or intentionally aids by any act or illegal omission doing of that thing. 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.

In order to Attract Section 107 of IPC there should be an element of instigation or participation which is supported by conspiracy or concealment of any fact. There is no such allegation made against Petitioner Nos. 3 to 13 that they have intentionally aided Accused Nos. 1 and 2 or intentionally instigated Accused No. 1 to get himself married with Accused No. 2. Mere participation in the marriage cannot be, in my opinion, sufficient to constitute an offence. Something more is required to be stated in order to prove conspiracy between the persons who actually committed the offence.

In the above said circumstances, I am of the opinion that absolutely no material is available to support the allegations made in this particular complaint except participation of Accused Nos. 3 to 13 in the marriage of Accused Nos. 1 and 2 and nothing is indicated that they have done any particular act of instigation or facilitation in order to see that Accused Nos. 1 and 2 marry each other. Hence, in the said circumstances, if the complaint is allowed to be continued so far as Petitioner Nos. 3 to 13 are concerned, it would amount to abuse of process of the Court. More over, Accused Nos. 3 to 6 are the mother, sisters and sisters'' husbands of Accused No. 1. The cause-title of the complaint also shows that some of the accused persons are not residing in the said village where Accused No. 1 has been residing. Accused Nos. 1 and 2 are admittedly residing at Bengaluru. The residential address of Accused Nos. 3 to 9 are shown as they are residing in Kawadimatti, Muddebihal Taluk, Bijapur District. Accused Nos. 10 to 13 are shown to be the residents of Sindagi, Dindawar, Bavoor and Wajjal of Bijapur and Yadgiri Districts respectively. This shows that Petitioners 3 to 13 are not residing along with Petitioner Nos. 1 and 2.

In the above said circumstances, I am of the opinion that there must be some strong foundation to show that all the accused persons have joined their hands together earlier, to perform the alleged second marriage of Petitioner No. 1 with Accused No. 2 and conspired with each other to that effect and had instigated Accused Nos. 1 and 2 in getting themselves married. In the absence of any such materials, I am of the opinion that the complaint itself is not maintainable against them and the same is liable to be quashed.

In the result, the following order is passed:-

ORDER

The petition is allowed in part. The entire proceedings in C.C. No. 209/2014 arising out of P.C. No. 14/2013 pending on the file of the JMFC at Shorapur, so far as it pertains to the Petitioner Nos. 3 to 13 are concerned, is hereby quashed.

The petition is dismissed so far as Petitioner Nos. 1 and 2 are concerned.