THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.7206 of 2013
ORDER:
This petition is filed by the petitioners - A1 to A8 under Section 482 Cr.P.C. to quash the proceedings in CC No.120 of 2013 on the file of the Judicial Magistrate of First Class, Bhainsa, Adilabad District by setting aside the docket order passed by the learned Magistrate on 12.04.2013.
2. The 2nd respondent - complainant lodged a private complaint before the Judicial Magistrate of First Class, Bhainsa, Adilabad District against the petitioners and others alleging that she was the legally wedded wife of the 1st petitioner - A1. The 2nd petitioner - A2 was the second wife of A1. Petitioners No.3 and 4 (A3 and A4) were the parents and petitioners 5 and 6 (A5 and A6) were the brothers of the 1st petitioner. Petitioners No.7 and 8 (A7 and A8) were the wives of A5 and A6, respectively. A9 to A19 were the relatives of the 2nd petitioner. The complainant was married with the 1st petitioner on 23.02.2006 at Timmapur Village and out of the wedlock she begot a son, who was aged 5 years by the date of lodging the complaint. Their marriage was a love marriage. The parents of the 1st petitioner had not accepted their marriage as they did not get the expected amount of dowry. Therefore, the relations between them were strained. The 1st petitioner also sided with his parents and started harassing the complainant. She approached the police and filed a case demanding separate maintenance which was pending Dr.GRR,J 2 CrlP.No.7206 of 2013 before the Court. The 1st petitioner developed illicit intimacy with the 2nd petitioner and established sexual contact with her, due to which she became pregnant. A9 to A19 asked the 1st petitioner to marry her. As the complainant was the legally wedded wife of the 1st petitioner, they performed the marriage of petitioners 1 and 2 (A1 and A2) secretly on 12.02.2012 at the house of the parents of 2nd petitioner at Bagapur village, as per the family and caste custom. They performed all the rituals of a valid marriage. The complainant was informed about the same by the witnesses, who witnessed the marriage. A3 to A19 encouraged, aided and abetted the second marriage of the petitioners 1 and 2 by taking active part in every function and ritual. On recoding the statement of the complainant and two other witnesses, the Judicial Magistrate of First Class, Bhainsa had taken cognizance of the offence under Section 494 read with 109 IPC and issued process to A1 to A8. But, while passing the said order, the learned Magistrate had also noted that the complainant was absent, there was no representation for her. Time extended directing the complainant either to present or to get the matter represented else, the proceedings under Section 256 Cr.P.C. would follow.
3. Heard the learned counsel for the petitioners as well as the learned counsel for the 2nd respondent - complainant and the learned Public Prosecutor.
4. Learned counsel for the petitioners submitted that the learned Magistrate, having recorded the absence of the complainant at the time of passing the docket order on 12.04.2013 and also with regard to Dr.GRR,J 3 CrlP.No.7206 of 2013 non-representation, failed to dismiss the complaint by following the procedure under Section 256 Cr.P.C. The complainant had not produced any evidence particularly documentary evidence showing the second marriage alleged to have been held between the petitioners 1 and 2. In the absence of any such evidence, the Court below ought not to have taken the case on file. The Court below, without following any procedure contemplated under law, had taken the case on file against the petitioners and the same was liable to be set aside. The complainant with false and bald allegations implicated the petitioners in the case even though they had nothing to do with the alleged offence and prayed to quash the proceedings in CC No.120 of 2013 by setting aside the docket order dated 12.04.2013 in CC No.120 of 2013.
5. Learned counsel for the complainant - 2nd respondent, on the other hand, submitted that the complainant need not be present when the matter was posted for consideration. The statement of the complainant was recorded on 06.09.2012 and the statements of LWs.2 and 3 were recorded on 13.03.2013. She was also present on all the dates prior and subsequent to the said date of taking cognizance and filed the docket orders dated 06.05.2013, 10.05.2013, 27.06.2013 and 31.07.2013 and contended there was no illegality in the docket orders. She also relied upon the judgments of the Hon'ble Apex Court in Mohinder Singh v. Gulwant Singh and Others1 on the scope of enquiry under Sections 202 and 482 Cr.P.C., and in K.Neelaveni v. 1 1992 (2) SCC 213 Dr.GRR,J 4 CrlP.No.7206 of 2013 State and Others2 on the aspect that when the allegations prima facie constitute offences under Sections 406 and 494 IPC, truthfulness or otherwise of the allegations should not be gone into at the stage of quashing the FIR under Section 482 Cr.P.C., essential ceremonies of marriage whether gone into or not was a matter of trial and quashing of charge sheet for the offences under Sections 406 and 494 IPC by the High Court was not justified.
6. Learned Public Prosecutor also supported the contentions of the learned counsel for the 2nd respondent - complainant.
7. Perused the record. The present petition is filed to set aside the docket order dated 12.04.2013 passed by the Judicial Magistrate of First Class, Bhainsa on the ground that when the learned Magistrate recorded the absence of the complainant at the time of passing the docket order dated 12.04.2013 failed to dismiss the compliant under Section 256 Cr.P.C. The complainant need not be present on each and every date of hearing and the case need not be dismissed for her non- appearance. Her personal attendance is not required when the matter is posted for consideration. She was present at the time when the sworn statement was recorded and duly got examined the witnesses on her behalf. When the Court directed her presence, she was present on all the subsequent dates of hearing also as per the docket orders furnished by the learned counsel for the complainant. Hence, there are no merits in the contention of the learned counsel for the 2 2010 (2) ALD (Crl.) 531 (SC) Dr.GRR,J 5 CrlP.No.7206 of 2013 petitioners that the case ought to have been dismissed by the Court below by following the procedure under Section 256 Cr.P.C.
8. The other contention raised by the learned counsel for the petitioners for quashing the CC was that the complainant had not produced any documentary evidence showing the second marriage alleged to have been held between petitioners No.1 and 2 (A1 and A2). The complainant besides examining herself, also examined her father Bhumanna as LW.2 and the grandfather of the 2nd petitioner - A2 as LW.3 on 13.03.2013. The grandfather of the 2nd petitioner - A2 stated that the 2nd petitioner was the daughter of his own daughter. The 1st petitioner developed illicit intimacy with the 2nd petitioner, due to which she became pregnant and her parents asked the 1st petitioner to marry her. All the accused performed the marriage of petitioners No.1 and 2 at Bagapur in the house of the parents of the 2nd petitioner on 12.02.2012. All the relatives participated, aided and assisted the petitioners No.1 and 2 in performing the second marriage and all the customary and religious rites were performed. He told them not to perform the marriage without deciding the fate of the complainant, but they did not listen to him. He informed the father of the complainant. He also stated that out of the second marriage, a son was born to the petitioners 1 and 2 and they were residing at Timmapur and Bagapur villages. Thus, the sworn statement of the complainant and the statements of the witnesses examined by her would prima facie disclose the allegations made against the petitioners under Section 494 read with 109 IPC. As such, the learned Magistrate taking cognizance Dr.GRR,J 6 CrlP.No.7206 of 2013 of the offences and issuing process to A1 to A8 cannot be found fault with.
9. Learned Counsel for the petitioners relied upon the judgment of the Hon'ble Apex Court in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh3 wherein it was held that:
"Proof of solemnization of second marriage in accordance with essential religious rites applicable to parties is a must for conviction for bigamy. Mere admission by accused that he had contracted second marriage is not enough".
10. The said observations were made by the Hon'ble Apex Court while deciding the Criminal Appeal, but not at the stage of issuing process to the accused.
11. Learned counsel for the petitioners relied upon the judgment of this Court in Morrapu Satyanarayanan v. State of A.P.4 wherein it was held that:
"To support the charge of bigamy, the second marriage must be in all respects a valid marriage in accordance with custom and traditions of the law obtaining amongst the Hindus."
12. These observations are also made while deciding the Criminal Revision Case which was filed to revise the orders in Criminal Appeal on the file of Additional Sessions Judge, Visakhapatnam.
13. He also relied upon the judgment of this Court in Natari Parvati v. State of A.P.5 on the aspect that the second marriage is to be proved by proving the essential ceremonies required for a valid marriage. This is also held while deciding a Criminal Appeal. 3 AIR 1971 Supreme Court 1153 4 1962 (2) Cri.L.J. 644 5 Laws (APH)-2003-8-113 Dr.GRR,J 7 CrlP.No.7206 of 2013
14. Learned counsel for the petitioners also relied upon the judgment of the High Court of A.P. in Radharapu Ravinder v. State of A.P.6 wherein it was held that:
"The police were empowered to investigate and file their report/charge sheet under Section 198(1)(b) of the Code"
The said judgment was not relevant to the facts of the present case.
15. The Hon'ble Apex Court in Mohinder Singh case (1 supra), relied upon by the learned counsel for the complainant, held that:
"The scope of enquiry under Section 202 is extremely restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry."
16. The above judgment is applicable to the facts of the present case, which describes the scope of enquiry under Section 202 Cr.P.C.
17. The judgment of the Hon'ble Apex Court in K.Neelaveni case (2 supra) would also disclose that for quashing of charge sheet for the offences under Section 406 and 494 IPC, the truthfulness or 6 Laws(APH)-2005-9-98 Dr.GRR,J 8 CrlP.No.7206 of 2013 otherwise of the allegations cannot be gone into at the stage of quashing under Section 482 Cr.P.C., the essential ceremonies of marriage whether gone into or not was a matter of trial. Thus, in the present case, whether the complainant could prove the second marriage by adducing valid evidence is a matter of trial and the charge sheet cannot be quashed at this stage itself on the ground that the complainant had not produced any documentary evidence showing the second marriage between the petitioners No.1 and 2. Hence, it is considered not fit to quash the proceedings against the petitioners herein - A1 to A8 in CC No.120 of 2013 on the file of Judicial Magistrate of First Class, Bhainsa, Adilabad District, as there are no sufficient grounds.
18. In the result, the Criminal Petition is dismissed. Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J November 29, 2021 KTL