Telangana High Court

Katti Murali 7 Others vs The State Of A.P. Another on 29 November, 2021

Bench: G.Radha Rani

           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

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

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.

1992 (2) SCC 213 Dr.GRR,J

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

2010 (2) ALD (Crl.) 531 (SC) Dr.GRR,J

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

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.

AIR 1971 Supreme Court 1153

1962 (2) Cri.L.J. 644

Laws (APH)-2003-8-113 Dr.GRR,J

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

Laws(APH)-2005-9-98 Dr.GRR,J

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