Madras High Court
Appaiyam vs R.Kalaichelvi on 6 February, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.02.2012 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Crl.O.P.Nos.36039 of 2007 and 777 of 2008 Crl.O.P.No.36039 of 2007 1.Appaiyam 2.Krishnaveni .. Petitioners -Vs- R.Kalaichelvi .. Respondent Petition filed under section 482 Cr.P.C., to call for the records relating to C.C.No.301 of 2007 on the file of the Judicial Magistrate Court, Bhavani and quash the same in so far as it relates to the petitioners herein/accused 7 and 8 are concerned. For Petitioners : Mr.A.S.Vijayaraghavan For Respondent : Mr.I.C.Vasudevan Crl.O.P.No.777 of 2008 1.T.Ramesh 2.Manimaykalai 3.Tirumurthy 4.Vijayalakshmi 5.N.Rajagopal 6.Thamilarasi 7.Ramasami 8.Saraswathi 9.Marusami 10.Kumudhavalli 11.Rangaraji ..Petitioners Vs. R.Kalaiselvi ..Respondent Petition filed under section 482 Cr.P.C., to call for the records comprised in C.C.No.301 of 2007 pending on the file of the learned Judicial Magistrate's Court at Bhavani and quash the entire proceedings in the interest of justice. For Petitioners : Mr.Rubert J.Barnabas For Respondent : Mr.I.C.Vasudevan ----- O R D E R
Crl.O.P.No.777 of 2008 has been filed by 11 persons who have been arraigned as Accused Nos.1 to 6 and 9 to 13 in C.C.No.301 of 2007, which is pending on the file of the learned Judicial Magistrate, Bhavani. Crl.O.P.No.36039 of 2007 has been filed by the persons, who have been arraigned as Accused Nos.7 and 8 in the above said calendar case.
2. The said calendar case has been instituted on a private complaint preferred by R.Kalaichelvi, who is the respondent in both the petitions, alleging commission of an offence punishable under Section 494 IPC by the first accused and by the other accused an offence under sectin 494 r/w.109 IPC. The said complaint was preferred by the respondent Kalaichelvi before the learned Judicial Magistrate, Bhavani under Section 200 Cr.P.C. The learned Judicial Magistrate took cognizance of the complaint, examined the complainant and two more witnesses produced by the complainant on oath and after considering the contents of the complaint, the statements of the complainant and the witnesses recorded on oath, the learned Judicial Magistrate formed an opinion that the said case was not a case in which it could be said that there was no sufficient ground for proceeding further. Accordingly the learned Judicial Magistrate proceeded with the issuance of process under Section 203 r/w. 204 Cr.P.C. After being served with process, the petitioners in both the petitions, have come forward with the present petitions invoking the inherent powers of this Court under Section 482 Cr.P.C praying that the complaint should be quashed on various grounds set out in the grounds incorporated in the petition.
3. The submissions made by Mr.Rubert J.Barnabas, learned counsel for the petitioners in Crl.O.P.No.777 of 2008 and by Mr.A.S.Vijayaraghavan, learned counsel for the petitioners in Crl.O.P.No.36039 of 2007 and also the arguments advanced by Mr.I.C.Vasudevan, learned counsel for the respondent were heard. The petitions and the records were also perused.
4. Admittedly, the respondent Kalaichelvi is the wife of Ramesh, the first petitioner in Crl.O.P.No.777 of 2008. Due to some misunderstanding between the respondent and her husband Ramesh, the said Ramesh filed a divorce petition in H.M.O.P.No.701 of 2005 on the file of the Family Court, Coimbatore in the month of October 2005 alleging mental cruelty and harassment leading to irretrievable break down of the marriage. The complaint by the respondent came to be filed on 23.12.2005. It is quite obvious and not in dispute that the complaint came to be filed only after the filing of the H.M.O.P for divorce. Apart from the common ground raised on behalf of all petitioners in both the petitions, the petitioners in Crl.O.P.No.36039 of 2007, who have been arraigned as Accused Nos.7 and 8, have also chosen to contend that they have nothing do with the alleged second marriage contracted by Ramesh, who has been shown as the first accused and they have been projected only as persons who attended the marriage. According to the submissions made by the learned counsel, so far as the petitioners in Crl.O.P.No.36039 of 2007 are concerned, necessary averments against them attracting the penal provision 494 r/w 109 IPC have not been made against them.
5. The common ground of attack taken by all the petitioners in both the petitions is that the complaint does not disclose the completion of formalities of marriage as per Section 7 of the Hindu Marriage Act and the mere allegation that they were found with garlands and in front of the deity thali was tied on the neck of A2 by A1, shall not be enough to attract Section 494 IPC against them and section 494 r/w. Section 109 IPC against the other co-accused and that it shall be unethical to make them face trial, when necessary averments showing observance of the essential part of the marriage ceremony, which would make the marriage valid in the absence of the subsistence of the first marriage, have not been made in the complaint and neither the complainant nor any one of her witnesses has referred to the same in the sworn statement recorded by the Judicial Magistrate. Apart from the said contention, which has been commonly raised by all the petitioners in both the petitions, the petitioners in Crl.O.P.No.777 of 2008 have also raised a contention that the very filing of the complaint itself is an abuse of process of Court and on that ground also, the complaint should be quashed.
6. Per contra, Mr.I.C.Vasudevan, learned counsel for the respondent in both the petitions, would submit that the active participation of the petitioners (A7 and A8) in Crl.O.P.No.36039 of 2007 in the alleged marriage between the first accused and the second accused has been clearly averred in the complaint and that the same has been spoken to by the complainant and one of the witnesses examined, who has been cited as a witness, who saw the marriage of first accused with the second accused, in their sworn statements recorded by the Judicial Magistrate. Learned counsel for the respondent has also drawn the attention of the Court to the fact that the second witness produced has spoken to the effect that after the marriage, he saw the accused persons and learnt from them that the first accused had married the second accused with the intention of having a male issue. The learned counsel also has pointed out the fact that the said witness, namely Nataraj was cited as a witness only to speak about his seeing the accused 1 and 2 with garlands accompanied by the other accused and the enquiry he made in which, the accused persons revealed the factum of marriage. Regarding the other contention that the formalities of the marriage/ceremonies of the marriage as contemplated under Section 7 should have been clearly established by the averments made in the complaint and the sworn statements to maintain a prosecution, the learned counsel for the respondent has drawn the attention of the Court to the Tamil Nadu amendment by which Section 7-A has been introduced in the Hindu Marriage Act and submitted that the judgments pronounced in respect marriages that took place elsewhere in the country would not get attracted to the marriages that take place in Tamil Nadu. It is also the submission of the learned counsel for the respondent that the mere fact that a divorce petition preceded the complaint shall not be enough to hold the complaint to be a false one or abuse of process of Court and that the prayer for quashing the complaint on the said ground should be rejected.
7. This Court paid its anxious consideration to the above said submissions made on either side. Upon such consideration, this Court comes to the conclusion that both the petitions are bound to fail and they are liable to be dismissed for the reasons herein after appearing.
8. Admittedly, the marriage of the first accused with the respondent Kalaichelvi was subsisting as on the date of alleged second marriage. It is also not in dispute that though a divorce petition was filed, the same has not yet been disposed of. It is not the case of the petitioners that the marriage of the respondent with the first accused was a nullity and hence, any other marriage contracted by the first accused will not attract the provision of Section 494 IPC. On the other hand, it is the admitted case of the petitioners that the marriage of the first accused with the respondent still subsists. The petitioners do not try to contend that there was a marriage between the first accused and the second accused as alleged by the complainant, which shall not be called bigamy. On the other hand, they have contended that such marriage never took place. In this regard, learned counsel for the petitioners in Crl.O.P.No.777 of 2008 wants to contend that since the complaint came to be preferred subsequent to the filing of H.M.O.P, that too, by fixing Bhavani, which is neither the place of residence of the first accused nor the place of residence of the complainant, as the place wherein the second marriage took place and preferring the complaint on the file of the learned Judicial Magistrate, Bhavani would show the abuse of process on the part of the respondent/complainant to drag the petitioners to a Court, which shall be more inconvenient to them. According to the contention raised by the learned counsel, the intention of the complainant/respondent was to coerce the first accused to withdraw the divorce petition.
9. The answer to the contention of the learned counsel for the petitioners is that simply because a divorce petition preceded the lodging of the complaint, we cannot come to the conclusion at the threshold itself that the averments made in the complaint are false and the complaint itself has been preferred with an intention of coercing the first accused to withdraw H.M.O.P. The other contention raised on behalf of the petitioners is that the respondent/complainant could have either chosen Coimbatore being the place wherein they last resided together or Tiruchengode, wherein the respondent resides as the place for prosecuting the accused and the very fact that the respondent/complainant has chosen Bhavani as the place for launching prosecution will show the malafide intention on the part of the respondent/complainant with a view to harass and thereby make the first accused to come to terms. In support of his contention learned counsel for the petitioners in Crl.O.P.No.777 of 2008 has drawn the attention of the Court to Section 182(2) of Cr.P.C, which deals with the jurisdiction for trial of offence under Section 494 or 495 IPC. Unfortunately, the said provision does not lend any help to the learned counsel in support of his contention. Of course, there are options for the complainant to chose any one of the jurisdictions mentioned therein.
10. The section says that an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage, or the wife by first marriage has taken up permanent residence after the commission of offence. It gives three options to the complainant either to prefer the complaint before a Magistrate having jurisdiction over the place wherein the offence was committed or the Magistrate, who is having jurisdiction over the place in which the complainant last resided with her husband, namely the first accused herein or the Magistrate having jurisdiction over the place, which the complainant/respondent has taken up as her permanent residence after the second marriage of her husband. We cannot now assume that the complainant has taken up the place of her parents as the place of her permanent residence. Even otherwise, it is only an option given to the wife who prefers such a complaint. Out of the three options, the respondent/complainant has chosen the first option, namely the place wherein the offene was committed. We cannot find fault with the same. The place wherein the offence was allegedly committed might have been considered by the complainant as the most convenient place to collect evidence and bring witnesses to prove the case. Even otherwise, the choice made by the respondent/complainant cannot be found fault with. Therefore, the contention raised on behalf of the petitioners that the choice of the jurisdiction of Judicial Magistrate, Bhavani itself will show abuse of process of Court has got to be rejected.
11. The next contention is that the alleged second marriage has not been stated to have been performed in accordance with the customary rites or ceremonies of either of the parties to the marriage and as per Section 7 of the Hindu Marriage Act and hence it should be infrerred that the Magistrate who took cognizance, has failed properly to appply his mind to the contents of the complaint and the documents including statements recorded on Oath under Section 202 Cr.P.C. As rightly pointed out by the learned counsel for the respondent, the answer to the above said contention lies in the Tamil Nadu Amendment by which Section 7-A has been introduced to Hindu Marriage Act. As per the special provision applicable in Tamil Nadu, all hindu marriages whether it is called Suyamariythai or Seerthiruththa marraige or any other name, shall not be valid if each party to the marriage declare in the language understood by the parties that each takes the other to be his wife or husband as the case may be in the presence of relatives, friends or other persons or by each party to the marriage garlanding the other or by putting a ring upon any finger of the other or by tying a thali. For better appreciation Section 7-A is reproduced hereunder:
7-A Special provision regarding Self-Respect and Secular Marriages:
(1) This section shall apply to any marriage between any two Hindus whether called Self Respect marriage or Secular marriage or by any other name, solemnized in the presence of relatives, friends or other person:
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife, or as the case may be, her husband; or
(b) by each party to the marriage garlanding the other or putting a ring upon any finger or the other; or
(c) by the tying of the Thali or mangalsutra (2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which this section applies solemnized after the commencement of the Hindu Marriage (Amendment) Act, 1990, shall be good and valid in law.
(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Amendment) Act, 1990 or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub-section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriages respectively, good and valid in law.
(3) Nothing contained in this section shall be deemed to-
(a) render valid any marriage referred to in clause (b) of Sub-section (2), if before the commencement of the Hindu marriage (Pondicherry Amendment) Act, 1971,-
(i)Such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another; or
(b) render invalid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was invalid at that time; or
(c) render valid a marriage between any two Hindus solemnised at any time before such commencement, if such marraige was invalid at that time on any ground other than that it was not solemnised in accordance with the customary rites and ceremonies of either party thereto;
Provided that nothing obtained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.
(4) Any child of the parties to a marriage referred to in clause (b) of Subsection (2) born of such marriage shall be deemed to be their legitimate child:
Provided that in case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii)" Pondicherry Act 14 of 1971, S.2 (w.e.f 9-7-1971).
12. If the contention of the learned counsel for the petitioners is considered in the light of Section 7-A, we have to arrive at a necessary conclusion that the said ground is not available to the petitioners at this point of time. Prime facie averments have been made in the complaint and the complainant and one of the witnesses, have also spoken to the facts attracting Section 7-A of the Hindu Marriage Act. The same shall be enough to hold that there are sufficient grounds for proceeding with the case. Section 203 Cr.P.C mandates the dismissal of the complaint only in case the Magistrate, upon considering the complaint and the statements recorded under Section 202 Cr.P.C and the report, if any, submitted on an investigation ordered by the Magistrate under Section 202, forms an opinion that there is no sufficient ground for proceeding. Here, we cannot say that the Magistrate has not applied his mind or not properly applied his mind to the materials to make a decision whether there is no sufficient ground for proceeding. It is trite law that at the time of deciding the question whether to proceed with the case or not under Section 203 Cr.P.C, no evaluation of evidence should be made. Sufficiency of evidence also cannot be the ground on which the complaint can be dismissed. The Court has to decide on the said aspect as to whether there are sufficient ground for proceeding against the accused persons or not. In this case, learned Judicial Magistrate, after perusing the complaint and the sworn statements of the complainant and the witnesses, has arrived at a correct conclusion that there is sufficient ground for proceeding and that is the reason why the Magistrate has chosen to proceed with issuing of process.
13. It is also pertinent to note that Section 203 Cr.P.C mandates the Judicial Magistrate to assign reason when the Magistrate chooses to dismiss the complaint based on the opinion that there is no sufficient ground for proceeding. At the time of taking decision under section 203 Cr.P.C. the Court cannot go into the question whether the complaint is true or not and whether the witnesses whose statements have been recorded have spoken the truth or not. The said questions pertain to the domain of trial in which they have to be appreciated in proper perspective. On the other hand, if the Judicial Magistrate, upon perusing the records, forms an opinion that there are sufficient grounds, then the Magistrate's decision to proceed with the case by issuing process cannot be found fault with. The mere fact that process has been issued is not the end of the matter and the same is not the end of the path for the accused to get redressal of their grievances. In trial of warrant cases, at the time of framing of issues also, the question of discharge can be raised. Therefore, this Court comes to the conclusion that the contentions of the petitioners that the complaint has been preferred with a malafide intention and that sufficient grounds have not been made for proceeding against the petitioners, are bound to be rejected as untenable.
14. Yet another contention was also raised on behalf of the petitioners in Crl.O.P.No.777 of 2008 that there is a delay of nearly one month after the date of alleged occurrence and on that ground the complaint should be dismissed. This is not a cognizable case wherein we can find fault with the defacto complainant for not approaching the police immediately. Delicate relationships are involved. When the offence was committed within the knowledge of the complainant and the complaint was given at a later point of time, we may find fault with the complainant for approaching the Court with such a delay. Here again we should not forget that a complaint otherwise maintainable, cannot be thrown out merely on the ground of delay, unless it is barred by limitation. Therefore, the said contention also deserves to be rejected.
15. The other contention raised on behalf of the petitioners 3 to 11 in Crl.O.P.No.777 of 2008 and the petitioners 1 and 2 in Crl.O.P.No.36039 of 2007 is that they are simply stated to be the persons who attended the second marriage and necessary averments attracting the penal provision viz. Section 494 r/w 109 IPC. It shall be premature to decide at this point of time whether the evidence to be adduced in respect of the part played by them shall be sufficient to warrant a conviction or not. On the other hand, it has been made clear in the complaint that all of them participated in the marriage and all of them played a vital role in the marriage knowing fully well that the marriage of the first accused with the respondent/complainant was subsisting. Statements have also been recorded to the effect that they had also stated since the respondent/complainant could not give birth to a male child, they had to go for the second marriage of the first accused. If all these aspects are taken into consideration, we have to come to the necessary conclusion that the said contention of the petitioners as a ground for quashing the complaint also deserves rejection.
16. For all the reasons stated above, this Court decides the petitions against the petitioners and dismisses both the petitions. Accordingly, both the criminal original petitions are dismissed.
gpa To The Judicial Magistrate Court, Bhavani