Siddarama Reddy and Others vs Indramma

K.N. Phaneendra, J.—Petitioners who are arrayed as accused Nos. 1 and 3 to 11 before the Trial Court in C.C. No. 190/2014 have filed this petition seeking quashing of the entire proceedings registered against them for the offences punishable under Sections 494, 323 and 504 r/w Section 149 of IPC.

I have heard the arguments of Sri S.S. Mamadapur, learned counsel for Sri Sanjay A. Paul, learned counsel appearing for the petitioners and Sri B.K. Hiremath, learned counsel appearing for respondent and perused the records.

A private complaint came to be filed by the respondent herein for the above said offences. The order sheet produced by the petitioners before the Court disclose that complaint was filed on 06.06.2012 by the complaint and on the same day, the learned Magistrate has taken cognizance and posted the case for recording the sworn statement on 10.07.2012. The order sheet discloses that on 20.06.2013 sworn statement of the complainant was recorded and Exs. C1 and C2 were marked and the case was posted for further evidence. On several occasions, as the complainant did not lead any further evidence, the learned Magistrate has passed the order on 24.12.2013 wherein he has ordered to register a case in Register No. III for the offences punishable under Sections 494, 323, 504 r/w Section 149 of IPC and issued summons to the petitioners herein. The said order is called in question before this Court seeking quashing of the same.

The learned counsel for the respondent drawn my attention to the order of the learned Magistrate stating that the learned Magistrate has observed that private complaint filed by the complainant was referred to the police. The police have filed ''B'' final report and it was challenged by the complainant by filing protest memo and on the basis of the sworn statement of the complainant as C.W. 1, arguments were heard and thereafter, summons were issued. The said observation of the learned Magistrate is without any basis. There is absolutely no material to show that the case was referred to the police at any point of time and any ''B'' report is submitted and nothing is spelled out by the learned Magistrate about the contents of the ''B'' report. The learned Magistrate might not have applied his judicious mind to correct the order passed by him in consonance with the proceedings taken before the Court right from the date of lodging of the compliant. As I have narrated, this particular portion of the order that is referring the matter to the police is contrary to the proceedings before the Court as the learned Magistrate has taken cognizance on the date of filing of complaint itself i.e., on 06.06.2012 and proceeded with the case. This shows that the learned Magistrate has not applied his judicious mind to the proceedings taken place before him.

Be that as it may, now let me consider the merits of the case. The questions arose for consideration are whether the order passed by the learned Magistrate is proper and whether he could not have taken cognizance and issued process against the accused.

The complainant in fact has not at all challenged the order of the learned Magistrate. Therefore, the order of the learned Magistrate has reached its finality so far as the complainant is concerned. The complaint averments show that she has made certain allegations at paragraph-2 with regard to the incident taken place after the marriage and the demand for dowry and other things. But so far as the allegations to attract the offences under Sections 494, 323 and 504 r/w Section 149 of IPC are concerned, it is alleged at page-3 of the complaint that on 30.05.2012, the complainant had been to the house of her sister by name Parvathamma and she requested her sister to go to the house of accused No. 1 in connection with some financial difficulties faced by the complainant. In this context, as per the request of the complainant, the said Parvathamma had been to the house of accused No. 1 and at the time of talking with accused No. 1 and the other accused i.e., accused Nos. 3 to 11 were also present and accused No. 2 was also present in the house. Then, the said Parvathamma enquired about accused No. 2 and all the accused persons have stated before the said Parvathamma that as the complainant had not brought any dowry amount, they have conducted marriage of accused No. 1 and accused No. 2. On the basis of the said statement of Parvathamma, the complainant had informed the same to her family members. In this background, the complainant on 01.06.2012 contacted accused No. 1 over phone and asked about the information received by the complainant from her sister Parvathamma. It is alleged that accused No. 1 has admitted that he has taken accused No. 2 by way of second marriage as his wife. In this regard, it is further stated that on 04.06.2012 at about 11.00 a.m. accused Nos. 1 to 11 have come to the house of the complainant and abused her in filthy language and also assaulted her and went away from the spot. On these allegations, the private complaint came to be lodged.

The sworn statement of the complainant was recorded. In fact, in the sworn statement also it is stated that she received information from Parvathamma and Parvathamma has stated that accused No. 2 was in the house of accused No. 1. When the complainant also had been to the house of accused No. 1, brothers of accused No. 1 have told that they have performed the marriage of accused Nos. 1 and 2. All the accused had come to the house of the complainant and abused her and assaulted her. Except these things, nothing has been stated in the sworn statement to come to a definite conclusion that allegations are sufficient to constitute the offences alleged against the petitioners.

In order to take cognizance under Section 190 of Cr.P.C., the learned Magistrate has to rely upon the factual matrix pleaded by the complainant and also rely upon the materials produced by the complainant. At the initial stages, under Section 202 of Cr.P.C., the learned Magistrate himself can enquire into the matter and record the statement of the witnesses and can look into the documents produced by the complainant. Section 203 of Cr.P.C., clearly mandates that on going through the contents of the complaint and also statement of the witnesses on the complainant side and on perusal of the documents, if the learned Magistrate is of the opinion that there are sufficient grounds to proceed against the accused by means of issuing summons, then, only the Magistrate has to proceed to pass order under Section 204 of Cr.P.C. Otherwise, under Section 203 of Cr.P.C., itself, the learned Magistrate has to dismiss the complaint. The word ''Sufficient Grounds'' used under Section 203 of Cr.P.C., play a decisive role. The Court has to verify whether the complaint averments constitute any offences, if so, whether those allegations are supported by sworn statement of the complainant and the statement of other witnesses, then only, the learned Magistrate can proceed under Section 204 of Cr.P.C. If no sufficient grounds are there, the learned Magistrate has to dismiss the complaint under Section 203 of Cr.P.C., at the threshold itself.

In order to constitute an offence under Section 494 of IPC,-

"whoever, having a husband or wife living marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

The complainant has to produce sufficient material in order to create sufficient grounds that the second marriage is void because of the existence of the first legal marriage between herself and her husband. In order to establish this, there must be some pleadings in the complaint with regard to the second marriage being conducted by following certain ceremonies which are sufficient to constitute second marriage. That is to say, both the first marriage and second marriage must be valid with reference to the ceremonies of the marriage. But the second marriage becomes void because of the legal fiction under Section 6 of the Hindu Marriage Act. That is to say, during the existence of the first marriage between the first wife and husband, he is legally prevented from marrying for the second time. In this particular case, as I have already narrated, the complainant has not stated that she saw the second marriage or she heard about any second marriage being taken place between accused Nos. 1 and 2. It is only her statement before the Court and the allegations made in the complaint are that her sister had been to the house of accused, she saw accused No. 2 in the house of the accused living as if wife of accused No. 1. Therefore, she questioned the accused persons and they said that they have taken accused No. 2 as wife of accused No. 1. Nowhere it is stated in the complaint as to how the second marriage was conducted, what are the ceremonies that have been performed, what religious ceremonies are in existence in the family of the complainant or accused No. 1 and whether any one of such ceremonies is sufficient to conclude that the marriage as a valid marriage. No date, time and place of the alleged second marriage is stated. In the absence of even single sentence being elicited in the complaint or sworn statement, as to how actually marriage was conducted and what were the ceremonies conducted, it cannot be said that the allegations are sufficient to constitute an offence under Section 494 of IPC.

The learned counsel for the respondent has made all his attempts to persuade this Court that there is clear admission on the part of the accused persons that they have stated before Mallakka who is the sister of the complainant that they have performed marriage of accused Nos. 1 and 2. Even in the complaint it is not stated whether any one of the accused was present in the marriage and whether any ceremonies have been followed by them in conducting the said marriage. Further added to that, the said Mallakka has not been examined before the Trial Court and she never stated anything with regard to the religious ceremonies being followed by any accused or after following any religious ceremonies, second marriage was conducted. Even assuming for a moment that these accused persons have been admitted before Mallakka that they have conducted marriage of accused Nos. 1 and 2, it will not suffice to substitute that any religious ceremonies have been performed. Therefore, it is just and necessary to rely upon the decision of the Apex Court reported in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., AIR 1966 SC 614 : (1966) CriLJ 472 : (1966) 1 SCR 539 , wherein the Apex Court has held as follows:

"In a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case.

Where, therefore, in prosecution for offences under Sections 494, 109 of IPC, the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused persons on statement of the alleged bridegroom that he had sexual relationship with the alleged bride and on admission of the accused in a written statement that the parties married after the first marriage was dissolved, was not justified."

The present case is worse than the case dealt with by the Hon''ble Apex Court. In this particular case, as I have already referred, there is no whisper in the complaint averments about any of the ceremonies being followed during performance of second marriage between accused Nos. 1 and 2. None of the paragraphs of the complaint disclose as to what are the ceremonies conducted while performing the marriage of accused Nos. 1 and 2. In view of the above said decision, admissions whatsoever on the part of the accused with regard to second marriage is not substituted by any pleadings about the ceremonies as to how the second marriage was conducted without giving any proof with regard to the second marriage. Merely on the basis of the admissions, no Court can draw any inference even at the initial stage that such materials would be placed before the Court in future therefore, cognizance can be taken, in my opinion, such an attitude is not proper and correct.

It is worth to refer to a decision of this Court reported in Smt. Suma Gouda @ Anitha @ Vasanthi Vs. Sri. M.K. Poovaiah, (2010) ILR (Kar) 5255 : (2010) 4 KCCR 2713 , wherein this Court has held that it is well settled that admission of marriage by the accused is not evidence for the purpose of proving the marriage either in the case of adultery or bigamy. Therefore, reiterating the principles as laid down in the above said ruling by the Apex Court, this Court was also of the opinion that strict proof of second marriage is required, for that, there must be basic foundational facts available in the complaint and also sworn statement of the complainant. If the foundational facts are absent in the complaint averments and the sworn statement, at any stretch of imagination, it cannot be said that there are sufficient grounds to proceed against the accused. Even admitting the entire complaint averments as true and sworn statement as true and if they are translated into evidence, at this stage, the Court has to see whether it is sufficient to constitute offence under Section 494 of IPC. If the answer is no, cognizance becomes bad in law. The appreciation of the materials on record clearly disclose that there is absolutely no whisper with regard to any ceremonies conducted and what are all the ceremonies conducted, who are all participated in the marriage and what are the roles given to the accused persons. All these important aspects ought to have been mentioned in the complaint. In the absence of such material, the learned Magistrate ought not to have proceeded against the accused. Therefore, in my opinion, the Trial Court ought to have dismissed the complaint under Section 203 of Cr.P.C., at the threshold itself.

So far as the other offences punishable under Sections 323 and 504 of IPC are concerned, this is an omnibus statement made in a very casual manner in the complaint that all the accused persons came, assaulted and went away. In my opinion, this type of omnibus statement, without there being any explanation in other paragraphs of the complaint exactly as to how the incident happened, is not sufficient to take proper action. It should not be misunderstood that in all the cases same principle is applicable. Each and every case differs from facts. On the basis of the facts and circumstance of each case, the Court has to decide whether it is sufficient to proceed against the accused or not. Looking to the above said facts and circumstances of the case, I am of the opinion that the cognizance taken by the learned Magistrate and issuance of summons against the accused without there being any sufficient ground is bad in law and the same is liable to be quashed.

I am also inclined to quash the proceedings against the person who has not appeared before the Court challenging the order of the learned Magistrate. Once the Court has come to the conclusion that the whole proceedings before the Magistrate are vitiated by serous illegality and irregularity which cannot be corrected at later stage, the same benefit has to be given to the person even who has not appeared and challenged the said order before the Court. Therefore, under the above circumstances, whole proceedings of the learned Magistrate are bad in law and the same is liable to be quashed.

Accordingly, I pass the following:

ORDER

"The petition is allowed. Consequently, the order passed in C.C. No. 190/2014 arising out of P.C. No. 245/2012 dated 24.12.2013 by the Principal Civil Judge and JMFC at Sindhanur, in taking cognizance and issuing summons against the petitioners and another accused for the offences punishable under Sections 494, 323, 504 r/w Section 149 of IPC is hereby quashed."