Nirmala alias Saroj and Others vs Chanchal Kumari and Another

S.S. Grewal, J.—This petition u/s 482 of the Cr.P.C. relates to quashment of the complaint under Sections 494 read with Section 109 of the I.P.C. as well as quashment of summoning order passed by the Judicial Magistrate First Class, Jalandhar dated 27-1-1988 and subsequent order of the said Court dated 12-7-1988, whereby, warrants of arrest were ordered to be issued for securing the presence of the accused, including the present petitioners.

Perusal of para-4 of the complaint Annexure P-l filed by Chanchal Kumari reveals that Manohar Lal accused has performed a regular second marriage with Vinod Kumari who was the legally wedded wife of Suresh Kumar. The marriage of Chanchal Kumari with Manohar Lal accused, took place in the year 1965 at Jalandhar according to Hindu rites. Out of the said marriage, five children, i.e. four sons and one daughter were born and all the said children are studying in schools. It was further pleaded that relations between her and Manohar Lal (accused No. 1) remained cordial upto the year 1981. In the year 1982, her husband Manohar Lal accused developed illicit relations with Vinod Kumari, accused No. 2. Manohar Lal started mat-treating her and also acted with cruelty. Raman and Shastri and Ashok Kumar were present at the time of the performance of the second marriage of Manohar Lal with Vinod Kumari, co-accused at Ludhiana. The marriage took place according to Hindu rites by performing "Four lanwan" before the sacred fire.

No reply on behalf of the State was filed in this case. Counsel present for the parties were heard. On behalf of the petitioner, it was contended that according to the allegations in the complaint itself, the second marriage of Manohar Lal, accused with Nirmala alias Saroj, co-accused took place at Ludhiana and as such the Court of the Judicial Magistrate, Jalandhar bad no jurisdiction to try the present case. In support of his case, in Sukhdev Singh v. Sukhvinder Kaur 1974 Crl.L.J. 229 where it was held as under :--

"An offence u/s 494, Indian Penal Code can be tried by the Court of the District in which the re-marriage had taken place and not by the Court of the District where the complainant resided. Section 531. Criminal Procedure Code cannot be invoked to overlook a material irregularity pertaining to jurisdiction when it was brought to the notice of the Court before the commencement of the trial."

The aforesaid authority related to provisions of Section 53 of the old Cr.P.C. u/s 462 of the new Code, the finding, sentence or order of any Court should not be set aside merely on the ground that enquiry, or, trial took place in wrong Sessions Division, District, subdivision of the other local area. In the instant case, it appears that such efforts has not in fact, occasioned any failure of justice. So far only preliminary evidence has been recorded and the accused has been summoned to stand in the trial Court. As such the institution of the complaint in the Court of the Judicial Magistrate at Jalandhar or subsequent proceedings taken by him cannot be set aside. However, an objection concerning jurisdiction has been raised at the very outset and it would be desirable in the interest of justice that the case is transferred to the Court of Chief Judicial Magistrate, Ludhiana for trial.

The other contention raised by the learned counsel for the petitioner is to the effect that there is no specific allegation in the complaint, nor, any evidence has been produced which would indicate, how, the second marriage of accused No. 1 and 2 took place. This argument is hardly tenable in view of the fact that there is specific allegation in the complaint itself, that Manohar Lal accused performed regular second marriage with Vinod Kumari, accused No. 2 according to Hindu rites by performing four lanwan before the sacred fire. In case Smt. Priya Bala Gosh v. Suresh Chander Gosh AIR 1971 SC 1153, no doubt it was observed that proof of solemnisation of second marriage in accordance with the essential religious rites applicable to the parties is a must for the conviction of the accused. The fact remains that from the allegations made in the complaint, in the instant case, it has been specified that the second marriage of the accused No. 1 and 2 took place according to Hindu rites by performance of four lanwans before the sacred fire. This ceremony in case of marriage between the Hindus would normally constitute a valid marriage. The afore cited authority does not help the case of the petitioners at this stage.

Faced with this difficulty, it was submitted on behalf of the learned counsel for the petitioners that mere presence of accused No. 3 to 7 who are the close relations of accused at the time of solemnisation of the alleged second marriage without any allegation concerning abetment would not be sufficient to hold that they have committed any such offence at the time of the performance of second marriage. It was further submitted that mere consent of persons present concerning the illegal marriage of an accused in a house does not necessarily constitute abetment of such marriage. The second authority cited was Muthammal v. Maruthathal 1981 Crl.L.J. 833 wherein it was held as under :--

"Where the charge under Sections 109 and 494 was levelled against the petitioners who were alleged to have abetted the accused to marry during subsistence of the first marriage, the charge could not be maintainable against them in view of the evidence adduced the prosecution witnesses which did not show that the petitioners presence at the time of marriage amounted to commissioning of the offence and if the petitioners had not remained present at the time of the marriage the offence u/s 494 could not have taken place. Further just because the mother was present at the time of marriage alongwith petitioners it could not be said that she was there only to commit abetment of the offence to be committed or committed by the accused.

The definition of the abetment in Section 107 includes not merely instigation, which is the normal form of abetment but also conspiracy and aiding and those three forms of abetment are dealt within proviso to Section 111. Instigation must have reference to the thing that was done. By mere association of the accused persons who are charged for an offence of abetment and the principal offender, in the absence of any material to show that there was an instigation or that there was any intention either in aiding or in commissioning the offence it cannot be said that offence of abetment is committed. The accused person can be charged and convicted for the offence of abetment where there is evidence to show that such persons have instigated or otherwise abetted in the acts of the person who has actually committed the offence or crime."

There is no dispute with the Proposition of law enunciated in the aforecited authorities. The fact remains that according to the allegations in the complaint itself, accused No. 3 to 7 who are nearest relations of accused No. 1 were present at the time of solemnisation of the second marriage of accused No. 1 and 2 also abetted the performance of the said second marriage of accused No. 1 with accused No. 2 fully knowing that they were already married and the complainant who is the legally wedded wife was alive and was residing at Jalandhar alongwith her children.

These allegations specifically relate to abetment of the offence by the accused No. 3 to 7 and not with regard to the mere presence of these accused at the time of the performance of the alleged second marriage of accused No. 1 and 2.

Question whether the second marriage was or was not legally solemnised, or, the question whether the offence of abetment by accused No. 3 to 7 has been proved shall be disposed of by the trial Court without any reference to the observations made above for the disposal of this petition.

For the foregoing reasons, neither the complaint nor the orders already passed by the Judicial Magistrate, Jalandhar are liable to be quashed at present. The Chief Judicial Magistrate, Ludhiana, however, would proceed with the case according to la w from the next stage and dispose of this case expeditiously.

This petition is accordingly dismissed. Parties present through their counsel have been directed to appear before the Chief Judicial Magistrate, Ludhiana in 18th October, 1989.