Sri K J Vishwanath vs N R Bhagya
2022 Latest Caselaw 7517 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 26TH DAY OF MAY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.1054 OF 2020

BETWEEN:

1.   SRI K.J.VISHWANATH
     S/O LATE JAVAREGOWDA
     AGED ABOUT 56 YEARS,
     DEVARAJA NILAYA,
     KOTTANGERI STREET
     NEAR HASANAMBA TEMPLE
     HASSAN - 573 201.

2.   SMT. MANJULA
     W/O VENKATESH
     AGED ABOUT 61 YEARS,
     R/AT HULIKINA CHIKKANNA HOUSE,
     SALAGAME ROAD
     HASSAN - 573 219.

3.   DASE GOUDA
     AGED ABOUT 62 YEARS
     R/AT SANTHE PETE,
     B.M.ROAD, HASSAN - 573 219.

4.   SMT. MALA
     AGED ABOUT 50 YEARS
     W/O DASE GOWDA
     R/AT SANTHE PETE,
     B M ROAD, HASSAN - 573 219.
                                             ... PETITIONERS
(BY SRI MAHESH S., ADVOCATE)
                               2



AND:

SMT.N.R.BHAGYA
W/O K.J.VISHWANATH
TEACHER
NERALEHALLI GRAMA,
KASABA HOBLI
ARAKALGUD TALUK
HASSAN DISTRICT.
                                                ... RESPONDENT
(BY SRI N.K.HARISH, ADVOCATE)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONER IN C.C.NO.55/2015, EARLIER IN C.C.NO.1/2009
(PCR NO.8/2008) FOR THE OFFENCE P/U/S.494 R/W SEC.34 OF
IPC PENDING BEFORE THE HONBLE JUDICIAL MAGISTRATE I
CLASS, ARAKALGUD AGAINST THE PETITIONER.


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

                             ORDER

The petitioners are before this Court calling in question

proceedings in C.C.No.55/2015 arising out of P.C.R.No.8/2008

registered for offences punishable under Section 494 r/w

Section 34 of the IPC.

2. Heard Sri.Mahesh.S., learned counsel appearing for

petitioners and Sri.N.K.Harish, learned counsel appearing for

respondent.

3. Sans unnecessary details, facts in brief are as follows:

The first petitioner is the husband of the complainant. The

first petitioner married the complainant on 27.05.1985 and has

a daughter born from the wedlock. Petitioners 2, 3 and 4 are

relatives of the husband. A complaint is registered by the

respondent in PCR 142/2007 alleging offences punishable under

Section 494 r/w 34 of the IPC against the petitioners. An

investigation into the offences having been directed by the

learned Magistrate, the police after investigation, filed a charge

sheet in the matter. It is on filing of the charge sheet, the

petitioners have knocked the doors of this Court in the subject

petition.

4. The learned counsel appearing for the petitioners would

contend that the present petition should be dismissed solely on

the ground of delay, as the complainant is fully aware of the

marriages that the first petitioner has contracted with the other

women and therefore, seeks dismissal of the petition.

5. On the other hand, learned counsel for the respondent

would vehemently refute the submissions to contend that the

offences so alleged against the first petitioner is a continuing

one, as it is admitted in the petition that the first petitioner has,

in the subsistence of the first marriage, married not only once

but twice and therefore, is guilty of the offences punishable

under Section 494 of the IPC. He would seek dismissal of the

petition.

6. I have given my anxious consideration to the

submissions made by the learned counsel for both the parties

and perused the material on record.

7. The afore-narrated facts are not in dispute. The

marriage between the second accused and the first petitioner

takes place on 26.05.1988. The complaint is filed by the

respondent-complainant in the year 2007. The solitary ground

that is urged in the petition is that the complaint is registered

after inordinate delay i.e., after 19 years of the second marriage

and 9 years of the alleged third marriage, which according to the

petition averments has taken place on 20.05.1998. Therefore, it

is a clear admission of the first petitioner that he has contracted

three marriages during the subsistence of the first marriage and

the husband and wives thus married were all aware of the

earlier marriages. Therefore, the offence under Section 494 of

the IPC becomes a continuing one, in the case at hand, on the

sheer admission on the part of the first petitioner. Therefore, it

is for the first petitioner to come out clean in the trial.

8. This Court, in identical circumstances, in

Crl.P.No.9849/2021 disposed on 25.05.2022, has held as

follows:

"10. The afore-narrated graphic details of dates and events are not disputed and are therefore not reiterated. The 3rd marriage of the 1st petitioner is admitted even in the petition. Therefore, the only issue that false for my consideration is, "Whether the offence of bigamy is a continuing offence or the proceedings instituted for offence punishable for bigamy under Section 494 of the Cr.P.C. can be obliterated on the ground of delay?

11. A few dates that would be needed for the said consideration are that, the marriage of the 1st petitioner with the complainant is on 02-05-1968. Marriage with the sister of the complainant is in the year 1972-73. From the wedlock, the 1st petitioner with the complainant or her sister has three and two children respectively, who are all aged more than 45 years. During the subsistence of these two marriages, the 1st petitioner marries the 2nd petitioner on 12- 04-1993. Therefore, the 1st petitioner has admitted that he has contracted three marriages. The complainant being aware of subsequent marriages are not would be legally immaterial. The Apex Court in the case of STATE OF BIHAR v. DEOKARAN NENSHI AND ANOTHER1, has interpreted the phrase 'continuing offence' and holds as follows:-

"5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."

The Apex Court holds that a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. Following the aforesaid judgment, a learned single Judge of the High Court of Gujarat in the case of JAFAR ABBAS

1 (1972) 2 SCC 890

RASOOLMOHAMMAD MERCHANT v. STATE OF

GUJARAT , holds that bigamy is a continuing offence. The learned Judge has held as follows:

"56. In interpreting Section 494 of the IPC, one should look into the purpose of enactment and also to the mischief to be prevented. The object of enacting Section 494 of the Penal Code, 1860, to my mind, clearly was to punish persons, who in defiance of the law applicable to them in matters of marriage and divorce, etc., take a second wife during the existence of the first, but for the Personal Law of the Muslim, as discussed above, the applicant would be guilty of the offence of bigamy, if ultimately proved, on the basis of the evidence recorded in the course of the trial. He is able to get away with which by misinterpreting and misusing to his advantage, the message of the holy prophet Mohmmad, which is reflected in the holy 'Quran'. The 'Quran' does not say that a Muslim can treat his wife cruelly, drive her out and without dissolution the first marriage in accordance with law, he can marry for the second time and upto four times. The message of the holy prophet is loud and clear. Everyone knows about it, but still do not want to follow it.

... ... ...

77. In the case of State of Bihar v. Deokaran Nenshi, reported in (1972) 2 SCC 890: (AIR 1973 SC 908), it was observed by the Apex Court that a continuing offence is one which is susceptible of continuance and is distinguished from the one which is committed once and for all. It is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is

2 (2015) SCC Online Gujarat 5552

absent in the case of an offence which takes place when an act or omission is committed once and for all."

Several other High Courts have also taken the similar view that bigamy is a continuing offence. If admitted facts as deliberated hereinabove are taken note of, it cannot be in doubt that the 1st petitioner has contracted second and even third marriages during the subsistence of the 1st marriage with the complainant. In the teeth of the admitted fact, no further interpretation need be given, as even to day, the 1st petitioner admits that he is the husband of three women. Therefore, he is in the web of the offence punishable under Section 494 of the IPC. The proceedings against the 1st and 2nd petitioners cannot be quashed as the offence is admitted by the 1st petitioner in the petition. It being with the consent of the 1st wife or with the consent of the 1st and 2nd wives for the third time would become immaterial for consideration of offence of bigamy. In the teeth of the admitted facts of the petitioner marrying thrice and its subsistence even as on day, the plea of delay in registration of the crime would pale into insignificance, as bigamy in the case at hand is a continuing offence. The 1st petitioner, the 2nd petitioner and the other two wives of the 1st petitioner have all married the 1st petitioner during the subsistence of each others marriage and being fully aware of the preceding marriage. Therefore, the proceedings will have to be continued against them.

12. Insofar as the case of petitioner Nos.3, 4, 5 and 6 is concerned, it will have to be viewed with a different lens. The act of bigamy generally is a triangle involving the husband, the 1st wife and the 2nd wife. This is a peculiar case where it is a quadrangle, though the 2nd wife is not before the Court. Therefore, the 1st petitioner, 2nd petitioner and the complainant will have to resolve the issue amongst themselves. Petitioner Nos.3, 4, 5, and 6 who are other family members or friends of the 1st petitioner cannot be hauled into these proceedings unless there are instances to demonstrate that they were responsible for the commission of second marriage or even the third marriage. That is not the averment in the complaint. The 2nd marriage has taken place in the year 1973 and the third marriage in the year

1993. Dragging all other members of the family and friends into the web of these proceedings sans countenance.

13. Therefore, criminal proceedings against petitioner Nos.3, 4, 5 and 6 require to be obliterated and the charge sheet against petitioner Nos.1 and 2 is required to be sustained only for the offence under Section 494 of the IPC and not under Section 109 of IPC.

14. It is for the protagonists in the quadrangle to resolve the issue amongst themselves and not drag other persons into these proceedings. If the proceedings against other petitioners are not quashed, it would become an abuse of the process of law, result in miscarriage of justice and quadruplet harassment to petitioner Nos.3 to 6."

Even in the case at hand, petitioners 2, 3 and 4 have

nothing to do with the allegation of bigamy between the first

petitioner and respondent and also the alleged second or third

wife. Petitioners are other members of the family. The

complaint nowhere narrates petitioners 2, 3 and 4 were

responsible for the marriage or have instigated repeated

marriages.

9. Therefore, in the light of what is held by this Court

(supra), if further proceedings are permitted to continue against

petitioners 2, 3 and 4, it would become an abuse of the process

of law.

10. For the aforesaid reasons, while sustaining the trial

against the first petitioner, I deem it appropriate to obliterate the

proceedings against the other petitioners. Wherefore, the

following:

ORDER

(i) Criminal Petition is allowed in part.

(ii) Impugned proceedings against petitioner Nos.2, 3

and 4 pending in C.C.No.55/2015 before the Hon'ble

Judicial Magistrate I Class, Arakalgud, stand

quashed.

(iii) Petition insofar as petitioner No.1 stands dismissed.

(iv) It is made clear that the observations made in the

course of the order is only for the purpose of

consideration of the case of petitioners under Section

482 of Cr.P.C. and the same shall not bind or

influence the proceedings pending against other

accused persons before the trial Court.

Consequently, I.A.No.1/2019 stands disposed.

Sd/-

JUDGE

bkp CT:MJ