Kumarswamy And Ors vs The State Of Karnataka
2021 Latest Caselaw 5441 Kant

           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 4TH DAY OF DECEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

           CRIMINAL PETITION No.201577/2021


BETWEEN:

1. SRI.KUMARSWAMY
   S/O KARIBASSAYYA
   AGED ABOUT 60 YEARS
   OCCU: AGRICULTURE
   R/O JALIHAL VILLAGE
   TQ SINDHANUR
   DIST RAICHUR - 584128.

2. SMT MALLAMMA
   W/O KUMARSWAMY
   AGED ABOUT 58 YEARS
   OCCU: HOUSEHOLD
   R/O JALIHAL VILLAGE
   TQ SINDHANUR
   DIST RAICHUR 584128.

3. SRI GHANAMATHADAYYA
   S/O KUMARSWAMY
   AGED ABOUT 40 YEARS
   OCCU: AGRICULTURE
   R/O JALIHAL VILLAGE
   TQ SINDHANUR
   DIST RAICHUR 584128.
                          2



4. SRI KARIBASSAYYA
   S/O KUMARSWAMY
   AGED ABOUT 30 YEARS
   OCCU: AGRICULTURE
   R/O JALIHAL VILLAGE
   TQ SINDHANUR
   DIST RAICHUR 584128

5. SRI MALLAYYA
   S/O SHIVASHANKARAYYA
   AGED ABOUT 56 YEARS
   OCCU AGRICULTURE
   R/O KARALAKUNTI VILLAGE
   TQ LINGASUGUR
   DIST RAICHUR 584 122.

6. SMT PARVATAMMA
   W/O MALLAYYA
   AGED ABOUT 50 YEARS
   OCCU: AGRICULTURE
   R/O ELEKOODLIGI VILLAGE
   TQ SINDHANUR
   DIST RAICHUR 584128.
                                  ...PETITIONERS

(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA
   REP. BY ADDL.SPP
   HIGH COURT OF KARNATAKA
   KALABURAGI BENCH
   KALABURAGI - 585 103

2. SMT. SRIDEVI
   W/O. BASAVANNAAYYA
   AGED ABOUT 30 YEARS
   OCCU HOUSEHOLD
                            3



  R/O JALIHAL VILLAGE
  TQ SINDHANUR
  DIST RAICHUR 584128.
                                        ...RESPONDENTS
(BY SRI GURURAJ V HASILKAR, HCGP For R1;
 NOTICE TO R2 SERVED)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING THIS COURT TO QUASH THE
ORDER     DATED   21.04.2021   PASSED   IN   CRL.R.P.NO.
19/2020, BY THE II ADDL. DIST. AND SESSIONS JUDGE
AT RAICHUR IN REJECTING THE PETITION SO FAR IT
CONCERNS TO THE PETITIONERS HEREIN AND ETC.


     THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:


                      ORDER

Heard the learned counsel appearing for the

petitioners and the learned High Court Government

Pleader appearing for the State. The counsel for the

second respondent is absent inspite of the service of

notice.

2. The factual matrix of the case is that the

complainant-second respondent has filed the private

complaint No.3/2018 invoking Section 494 of IPC read

with section 149 of IPC wherein the specific

allegations are made against these petitioners that on

14.08.2018 they were performing the marriage of

Basavannaiah with one Rajeshwari and the same was

witnessed by one Shankrappa and the same was

informed to the complainant and she has filed the

complaint wherein the specific allegations are made in

paragraphs 5 and 6 of the complaint.

3. Apart form that, the complainant has

examined on 21.12.2015 as PW1 and the witness who

informed regarding the second marriage is also

examined as PW2. The learned Magistrate after

considering the contents of the complaint, the sworn

statement and also the witness, the photographs

which are produced as Exs.P1 to P6, CD marked at

Ex.P7, photo bill is marked at Ex.P8 and certificate of

the photographer is marked as Ex.P9 comes to the

conclusion that the complainant had made out a prima

facie case to take cognizance for the offence

punishable under Section 494 of IPC and hence,

cognizance is taken and process has been issued.

4. The petitioners have approached the

revisional Court in Crl.R.P. No.19/2020 and the same

has been partly allowed in respect of petitioner Nos.9

to 16 and set aside the order of issuance of process

against them and rejected in respect of these

petitioners and hence, these petitioners are before

this court.

5. The counsel appearing for the petitioners

vehemently contended that in the absence of invoking

section 109 of IPC, there cannot be any order of

taking cognizance against these petitioners. In

support of his arguments, the learned counsel relied

upon the order dated 30.05.2019 passed by this Court

in Writ Petition No.5059/2018. In similar

circumstance, this Court passed an order that when

specific abetment is not stated and the learned

Magistrate has also not referred to any material to

show as to how the petitioners have abetted for

commission of offence, the Court can invoke Section

482 of Cr.P.C.

6. Per contra, the learned High Court

Government Pleader appearing for the respondent

No.1-State would submit that the learned Magistrate

having considered the material particularly

documentary evidence of Exs.P1 to P9 comes to the

conclusion that there is prima facie material against

the petitioners and the photographs depict performing

of second marriage of the husband of the

complainant.

7. Having heard the learned counsel for the

petitioners and the learned High Court Government

Pleader appearing for respondent No.1-State, while

taking cognizance the learned Magistrate has to

consider only the material of complaint as well as

statement of witnesses and also documents which

have been placed before the Court. Even the learned

Magistrate need not pass any detailed order. The

learned Magistrate while taking cognizance referred to

the contents of the complaint particularly, averments

made in paragraphs-5 and 6 and the statement of

witnesses i.e., complainant as well as eyewitnesses

who have witnessed the incident of performing of

second marriage. P.W.1 categorically deposed about

the petitioners performing second marriage of her

husband by following rituals and also spoke with

regard to tying of tali. P.W.2 in his evidence has

categorically deposed that he has witnessed the

incident of performing the marriage of Basavannayya

with Rajeshwari and the said marriage is second

marriage to husband of the complainant and he has

also deposed with regard to the incident of tying tali

and following rituals. Having taken note of the same,

the learned Magistrate while taking cognizance has

passed detailed order observing that Exs.P1 to P6,

Ex.P7-CD and certificate issued by the photographer

in terms of Ex.P9 prima facie discloses that the

accused persons have performed the second marriage

of the husband of the complainant and had invoked

ingredients of offence under Section 494 of IPC. No

doubt, this Court in the judgment referred to supra

held that in the absence of abetment to commit crime

under Section 494 of IPC, the Court can exercise

power. But, in the paragraph-9 of the said order it is

observed that the learned Magistrate has not referred

to any material to show as to how the petitioners have

abetted the commission of offence and also it is

evident that ingredients of offence under Section 109

of IPC are lacking against the petitioners and by

forming opinion that no reference was made by the

learned Magistrate, the order was passed. In the case

on hand, the learned Magistrate as I have already

pointed out, particularly made reference with regard

to statement of witnesses and documents which are

produced as Exs.P1 to P9 regarding performance of

marriage by the petitioners and also photographs

depicts performance of the second marriage of

Basavannayya with Rajeshwari and hence, comes to a

conclusion that there is prima facie case made out.

When such a detailed order has been passed by the

learned Magistrate and he has applied his judicious

mind while taking cognizance, the very contention of

the learned counsel for the petitioners that the

petition is liable to be allowed and impugned orders

are liable to be quashed cannot be accepted. The

reasoning given by the Co-ordinate Bench of this

Court in the judgment referred to supra is not

applicable to the case on hand. I do not find any

merit in the petition.

8. In view of the discussions made above, I pass

the following:

ORDER

The petition is dismissed.

In view of disposal of the main petition,

I.A.No.1/2021 for stay does not survive for

consideration and accordingly, it is disposed of.

Sd/-

JUDGE

SN/NB*