Special Judicial First Class ... vs Unknown
2023 Latest Caselaw 3883 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

            CRIMINAL PETITION No.1768 of 2019

ORDER:

This Criminal Petition under Section 482 of Code of

Criminal Procedure (Cr.P.C.) is filed by accused seeking

quashment of C.C.No.669 of 2015 pending on the file of learned

Special Judicial First Class Magistrate for Prohibition and

Excise, Guntur. The said criminal case alleges offence under

Section 494 I.P.C.

2. Respondent No.1 is State represented by learned

Assistant Public Prosecutor. Respondent No.2 is de facto

complainant. Despite notice being served, none entered

appearance for respondent No.2.

3. Sri Naga Praveen Vankayalapati, learned counsel

appearing for petitioner and learned Assistant Public Prosecutor

appearing for respondent No.1/State submitted arguments.

4. Facts leading to the presentation of the present criminal

petition are as mentioned below:

a. On a written information lodged by respondent No.2 -

Smt. Kilari Subhadra Devi, Crime No.57 of 2015 was registered

at Pattabhipuram Police Station. After due investigation, the

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Sub-Inspector of Police filed charge sheet as against the accused

for an offence under Section 494 I.P.C. and nine witnesses were

listed in proof of the case. The allegations are that on

18.04.1991 the marriage between accused and respondent No.2

was solemnized according to Hindu Rites and Customs.

Accused is employed in Panchayat Raj Department. During

their marital life they were blessed with a female baby on

05.10.1993. On several occasions the woman and her family

members had given several amounts to the accused to enable

him to commence business in coal and for learning computer

courses. Subsequently, the spouses shifted their matrimonial

home to Bangalore where accused started working in a

company. They lived at Bangalore during the year 2004. When

the woman intended to continue her job as a data operator,

disputes arose between spouses and she had filed a

maintenance case and he had filed a divorce case. There was

intervention of elders and the accused withdrew his case.

Because of the disputes spouses fell apart and the married lady

reached her parents' house in the year 2007 and has been living

with them.

Dr. VRKS, J Crl.P.No.1768 of 2019

b. Charge sheet further alleges that the married lady/de

facto complainant/respondent No.2 learnt that her husband

had married another woman by name Nidamanuri

Mohanajyothi and they lived at Tenali, Ongole, Hyderabad and

Bangalore and during their wedlock they gave birth to three

children by name Lasya, Darsan Venkata Sai, Geethika and

their births were registered at Nursing Home, Tenali, Tenali

Municipality and Darsan Venkata Sai is studying LKG in

Chaitanya Techno School and the man and his second wife and

children lived in Door No.2-37-26 in Burripalem Road, Tenali.

It is further alleged in the charge sheet that during the course of

investigation, the investigating officer could not collect any

documents or photographs indicating the alleged second

marriage of the accused with the other woman by name

Nidamanuri Mohanajyothi. Several persons named by the de

facto complainant could not also be examined as they were

never available. It is with those allegations the charge sheet

was laid.

5. To sustain the allegations made in the charge sheet, the

witnesses examined are de facto complainant/LW.1. List

Witness No.2 is to say about seeing the accused with his second

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wife at Tirupati where the accused introduced the other woman

as his second wife. List Witness Nos.3 and 4 are to speak about

the matrimonial differences that arose between the accused and

the de facto complainant/his wife. List Witness No.5 is to say

about accused and his second wife living in his house as

tenants. List Witness No.6 is to say about herself working in

the house of accused at Tenali where the accused and his

second wife were living. List Witness No.7 is to speak about the

children of accused born through the second marriage studying

in school. List Witness No.8 is the one who registered F.I.R. and

conducted investigation and List Witness No.9 is the Sub-

Inspector of Police who filed charge sheet.

6. Institution and initiation of such criminal prosecution is

challenged in this criminal petition by the accused alleging that

the case is false and he is falsely implicated. That even

according to the charge sheet, there is no evidence collected to

establish the alleged second marriage. The entire criminal

record failed to furnish even the date of marriage that allegedly

took place between the accused and the other woman. Learned

counsel appearing for petitioner argued that there is absolutely

no material available on record to prove solemnization of second

Dr. VRKS, J Crl.P.No.1768 of 2019

marriage and continuance of such proceedings could not be in

the interest of justice and is clear abuse of process of Court.

7. Learned Assistant Public Prosecutor representing the

State submits that the allegations mentioned in the charge

sheet prima facie disclose accused indulged in second marriage

and the quality of evidence is a matter for determination at the

trial and it is not a case for quashment and sought for dismissal

of petition.

8. The offence alleged against the accused is under Section

494 I.P.C., which reads as mentioned below:

"494. Marrying again during lifetime of husband or wife:--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.

Exception:--This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such

Dr. VRKS, J Crl.P.No.1768 of 2019

person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."

9. The first schedule to Code of Criminal Procedure shows

that the said offence is non-cognizable, bailable and is triable by

Magistrate of the First Class.

10. Chapter XIV of Code of Criminal Procedure provides for

conditions requisite for initiation of proceedings. Section 198

Sub-Section (1) proviso (c) Cr.P.C. provides that for a

prosecution of an accused for an offence under Section 494

I.P.C. it shall be initiated by a complaint made by the aggrieved

person namely the wife or on her behalf by her father, mother

and other relations mentioned therein. Section 2(d) of Code of

Criminal Procedure defines a 'complaint' showing that a

complaint shall be made to a Magistrate and it does not include

a police report. Thus, a complaint is different from police

report. In terms of Section 198 of Code of Criminal Procedure,

prosecution for the offence under Section 494 I.P.C. could be

initiated only by a complaint filed before the learned Magistrate.

In the case at hand, the proceedings that were initiated before

learned Magistrate were not out of a complaint filed before him.

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The case emerged on a police report. On these suppositions,

one could say that the very initiation of prosecution is incorrect

and against law. However, State of Andhra Pradesh passed Act

3 of 1992. By virtue of that, entry relating to Section 494 I.P.C.

as mentioned in Schedule-1 of Code of Criminal Procedure at

Column Nos.4 and 5 certain changes were brought in. This

amendment made the offence under Section 494 I.P.C.

cognizable and non-bailable. Be it noted that in terms of

Section 2(c) of Code of Criminal Procedure, a cognizable offence

means a case in which a police officer is entitled to arrest

accused without any warrant issued by the Court. Be it also

noted that Section 198 Cr.P.C. was not amended for Andhra

Pradesh State. A plain reading of these provisions give an

impression that Section 198 Cr.P.C. bar still holds good and

therefore a prosecution for an offence under Section 494 I.P.C.

could be done only by a complainant through her complaint and

not by way of a police report/charge sheet. It seems this view

was followed in B.Parvathi v. State of Andhra Pradesh1.

However, these aspects were clarified and law was laid down by

the Hon'ble Supreme Court of India in A.Subhash Babu v.

2020 (2) ALT (Cri) 141

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State of A.P.2. At para No.46 of the judgment, their Lordships

have laid the law that by virtue of the said amendment for State

of Andhra Pradesh carried out in the first schedule of the Code

of Criminal Procedure, the bar contained in Section 198 Cr.P.C.

for the offence under Section 494 I.P.C. gets lifted. In that view

of the matter, one could say that prosecution in this State for an

offence under Section 494 I.P.C. is possible either by a

complaint or by a police report.

11. Coming to the facts of the present case at hand, even after

complete investigation of the case the investigative officer

himself had mentioned that he was unable to collect any

evidence about solemnization of second marriage. It is

undisputed that none of the listed witnesses in the charge sheet

is a witness to the second marriage. The material on record

does not indicate even the date on which the second marriage

was solemnized and the place at which it was solemnized and

the persons who solemnized it. The charge sheet is absolutely

silent about the form of marriage and the ceremonies that were

observed in solemnizing the alleged second marriage. Thus,

everything that is relevant for proving a second marriage is

(2011) 7 SCC 616

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absent in the case. However, the evidence collected intended to

demonstrate the second marriage by some other evidence such

as that there were children born to the accused through second

wife and that they were living like wife and husband to the

knowledge of others and that the school records and birth

registers would show accused as father of those children. It is

on such material the prosecution wanted to prosecute the

accused. Thus, the question is whether there is legal evidence

to continue the prosecution and if there is no legal evidence

whether that could be said to be a prosecution to meet the ends

of justice. In similar fact situation, after a very detailed analysis

of statute and the binding precedent, the learned Judge of this

Court in B.Parvathis's case (supra 1) held that in a prosecution

for an offence under Section 494 I.P.C. the factum of the second

marriage has to be established with acceptable legal evidence

and that the factum of second marriage was to be proved with

such evidence showing that the solemnization of it was in

accordance with particular customs or ceremonies and further

the prosecution had to adduce evidence that the first marriage

and second marriage are valid marriages solemnized as per the

ceremonies prevailing in the community. When the charge

sheet failed to show and when the evidence collected failed to

Dr. VRKS, J Crl.P.No.1768 of 2019

show solemnization of second marriage and the form of its

solemnization and the ceremonies that were performed, then it

is a case of absence of prima facie case and absence of legal

evidence. That obligates the Court to quash the case. The facts

at hand are squarely governed by the ratio laid therein. The

submission of the learned counsel for petitioner that in the

absence of any legal evidence the case is liable to be quashed

shall be approved. In the considered opinion of this Court, any

further prosecution of this accused for the offence under Section

494 I.P.C. is not in the interest of justice.

12. In the result, this Criminal Petition is allowed. Criminal

proceedings as against the petitioner/accused -

Sri Kilari Jaggarao, S/o. Late Venkateswarlu in C.C.No.669 of

2015 on the file of learned Special Judicial First Class

Magistrate for Prohibition and Excise, Guntur registered for the

offence under Section 494 I.P.C. stand quashed.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 14.08.2023 Ivd

Dr. VRKS, J Crl.P.No.1768 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL PETITION No.1768 of 2019

Date: 14.08.2023

Ivd