Renukamma vs Lingappa and Others

K.N. Phaneendra, J.—Petitioner, grieved by the order passed by the Additional Sessions Judge, Raichur, in Criminal Revision Petition No. 36/2012 dismissing her private complaint in P.C. No. 153/2011 lodged before the Principal JMFC, Smdhanur, against the respondents for the offences punishable under Sections 494 and 109 of IPC, is before this Court.

I have heard the arguments of the learned counsel for the petitioner and the learned counsel appearing for respondents.

The brief facts that emanate from the records are that:

Petitioner-Smt. Renukamma lodged a private complaint in P.C. No. 153/2011 against the accused persons making allegations that she is the wife of the first respondent-Lingappa. Her marriage was taken place about 5 years prior to the lodgment of the complaint as per the customs and rituals prevailing in their community at Irlingeshwar Temple, Kyarihal village, Tq. Gangavati. It is further alleged that after the marriage, they lived as husband and wife for some time and thereafter, ill-treatment started etc. It is further alleged that the petitioner is a legally wedded wife of respondent Nos. 1 and this was known to all the respondents herein who are the close relatives of respondent No. 1. Knowing fully well that petitioner is the legally wedded wife of respondent No. 1, all the accused persons who are close relatives to respondent No. 1 have joined together, hatched a conspiracy amongst themselves and conducted second marriage of respondent No. 1 with respondent No. 2. They have participated in all the rituals of the marriage. At paragraph-8 of the complaint, the role of each of the accused persons have been stated as to how they actually participated in performing rituals of the marriage and how the second marriage was conducted in accordance with the customs and rituals prevailing in the said community. Making said allegations that respondent No. 1, during the existence of first marriage with the petitioner, married second time with the second respondent and all the other accused persons assisted to the second marriage and thereby, abetted under Section 494 of IPC. The complainant was examined herself as CW. 1 and got examined two witnesses as CWs. 2 and 3 who are also participated in the marriage. They have spoken about the second marriage and also about the first marriage between the respondent No. 1 and the petitioner. 4. On perusal of the complaint averments, statement of the witnesses and on considering the entire materials on record, the Trial Court by order dated 28.07.2011 ordered to issue process against the accused under Section 204 of Cr.P.C.

Being aggrieved by the said order, respondents herein have preferred the Criminal Revision Petition No. 36/2012 before the Additional Sessions Judge, Raichur. In fact, the learned Sessions Judge has dismissed the private complaint allowing the revision petition on the ground that the complainant based her case only on the oral evidence of herself and CWs. 2 and 3 and no documents are produced before the Court with regard to the second marriage. Further added to that, proof furnished by CW. 1 with regard to existence of first marriage and the second marriage between respondent Nos. 1 and 2 held to be insufficient. Therefore, against the said order, the present petition is filed.

On careful perusal of the complaint averments and also the order passed by the Trial Court, it discloses that the Trial Court has appreciated the evidence on record on their face value and it also in detail considered the contents of the complaint averments. It also discloses that the complaint is not vague or it is evasive but all the ingredients of Section 494 of IPC have been meticulously stated in the compliant and spoken to by CWs. 1 to 3. Specific roles have been assigned to them in the complaint and also spoken to by CWs. 1 to 3. It is the fundamental basic principle of criminal jurisprudence that at the time of taking cognizance or dismissing the complaint, the Court need not appreciate the materials on record but it should only evaluate the materials on record on then face value to find out whether prima facie there is any material to inquire into the matter calling upon the accused to explain about the allegations made against them. It should be borne in mind that those materials need not be sufficient either to frame charges or to convict the accused, if the allegations are unrebutted. But it is only for the purpose of ascertaining whether those allegations constitute any offence under any penal law for the time being in force, whether those allegations are supported by any materials on record in order to prima facie find out whether process have to be issued to the accused persons. In this back ground, provisions under the Code of Criminal Procedure have to be borne in mind.

Section 200 of Cr.P.C., contemplates examination of complainant and witnesses on sworn statement and if necessary, the Court can inquire into the matter under Section 202 of Cr.P.C. otherwise, the Court can proceed either under Section 203 or under Section 204 of Cr.P.C. Section 203 mandates that "if, after considering the statements on oath if any, of the complainant and of the witnesses and the result of the inquiry or investigation, if any under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint. Otherwise, if he is of the opinion that there are sufficient grounds to proceed against the accused persons, then he has to issue process to the accused persons. At that particular stage, the Court is only bound to look into the complaint averments and the statement of the witnesses. It should not imagine what should be the defence that may be taken up by the accused persons and whether the complaint averments are mala fide in nature or in order to wreck vengeance complaint is filed, because it is too premature stage and the facts are not completely collected by the Court at that particular stage. Therefore, the Trial Court has to apply its mind only to ascertain whether there is any prima facie case is made out or not. The Magistrate is not required to go deep into the probative value of the materials on record for prima face giving face value to those statements and complaint averments. If the Magistrate is of the opinion that the offences are made out and the allegations made at that stage if accepted are sufficient to call upon the other party to explain, if such a decision is arrived at by the Magistrate, he is justified in issuing process against the accused persons. In this particular case, as I have seen even the complaint averments as stated by the learned Magistrate and the statement of CWs. 1 to 3 discloses that they have categorically supported the complaint averments giving specific role to the respondents herein as to how they participated in the second marriage and knowing fully well about the first marriage, they have actually conducted the second marriage. When such being the case, material though not sufficient for the purpose of framing of charges or for the purpose of convicting the accused persons, it is enough to issue process against the accused. The learned Sessions Judge, even without considering what are the complaint averments and what CWs. 1 to 3 have stated and whether that is sufficient to proceed against the accused or not, has observed that the materials placed before the Court are not sufficient to show second marriage of the accused and other accused persons abetted the same and the interested testimony of CWs. 1 to 3 cannot be believed. The interestedness or otherwise and whether with private vengeance complaint is fled all those things have to be thrashed out only at the time of cross-examination of the witnesses not at the threshold itself. Therefore, under the above said circumstances, the order of the learned Magistrate which is passed considering the complaint averments and the statements of CWs. 1 to 3 should not have been easily brushed aside, thereby, I find serious error committed by the learned Sessions Judge. Therefore, the order deserves to be set aside and the order passed by the learned Magistrate, Sindhanur, in P.C. No. 153/2011 dated 28.07.2011 is required to be restored.

Accordingly, I pass the following.

ORDER

The petition is allowed. The order passed by the learned Sessions Judge in Criminal Revision Petition No. 36/2012 dated 16.02.2013 is hereby set aside. Consequently, the order dated 28.07.2011 passed by the learned Magistrate in P.C. No. 153/2011 is restored and the learned Magistrate is directed to proceed with the case in accordance with law.