Madras High Court
S.Jayakumar vs Kepsikala on 20 December, 2011
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/12/2011 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD).No.12064 of 2009 1.S.Jayakumar 2.Selvaraj 3.Selvamani 4.Baby 5.Sathiyadoss 6.Meena 7.Shanthi 8.Jawahar raj 9.Doss ...Petitioner Vs Kepsikala ...Respondent PRAYER Petition filed under Section 482 of the Code of Criminal Procedure, to quash the private complaint in C.C.No.164 of 2009 on the file of the Judicial Magistrate, Boodhapandi. !For Petitioners... Mr.S.Subaharan ^For Respondent ... Mr.C.Christopher :ORDER
This petition has been filed by the petitioners, who are the accused No.1,3 to 10, to quash the private complaint in C.C.No.164 of 2009 on the file of the Judicial Magistrate, Boothapandi and to pass such other orders.
2.The brief facts in the petitioners' case are as follows:
(i) The complainant/respondent had filed a private complaint against the petitioners and one another for the offences under Sections 120(B), 323, 494 and 506(ii) read with 34 I.P.C. before the learned Judicial Magistrate, Boothapandi and the same was taken on file in C.C.No.164 of 2009 on 15.09.2009 issued summons were issued to the petitioners.
(ii) The marriage between the 1st respondent and the complainant was solemnized on 29.01.2001 as per Christian rites and customs and they have been blessed with a child. After the birth of the child, the respondent attempted to commit suicide on many occasions and she had also threatened that she would implicate the 1st petitioner and his parents and sister in a dowry demand case. On 26.11.2002, the respondent has taken all her jewels and valuable goods and gone to Azhagiapandiyapuram.
(iii) In the complaint it has been stated that the 1st petitioner was living an illegal life with the 2nd petitioner and on 02.08.2009, the 2nd petitioner and the 1st petitioner were changing a ring and garland in the presence of the petitioners 3 to 10 and the other petitioners using filthy language against the respondent.
(iv) The mother of the respondent often visited the house of the 1st petitioner and ill advised her and hence, the 1st petitioner had filed a petition in I.D.O.P.No.222 of 2002 for restitution of conjugal rights before the District Court, Nagercoil and in that petition, the 1st petitioner and the respondent made an endorsement that both of them were ready and willing to live together. However, the 1st petitioner had filed a divorce petition pending before the District Judge, Nagercoil in I.D.O.P.No.63 of 2005 and the respondent had filed a maintenance petition in M.C.No.4 of 2008 and the same is also pending before the Judicial Magistrate, Boothapandi.
(v) The respondent gave a false complaint against me and the petitioners 3 to 10 for demanding dowry before the All Women Police Station, Nagercoil and the matter has been posted before the Social Welfare Officer, Kanniyakumari and after verifying the records, the District Social Welfare Officer passed an order on 03.11.2009 stating that there was no such action was necessary against the 1st petitioner and the complainant has foisted the case against the petitioners.
(vi) The respondent/complainant wantonly filed this private complaint in order to harass me and the petitioners 1, 3 to 10. Therefore, they have approached this Court with the present application.
3.Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
4.The learned counsel appearing for the petitioners (A1, 3 to 10) would submit in his argument that the private complaint filed by the respondent/complainant ought not to have been taken on file by the learned Judicial Magistrate, since there was no case made out against the petitioners regarding the offence under Section 494 I.P.C. since there was no marriage solemnized under Section 5 of the Indian Christian Marriage Act. He would further submit that there was no documents produced by the complainant along with the private complaint to show the solemnization of marriage nor the essential ceremonies to be performed for the said marriage. He would also submit that the marriage performed between the 1st petitioner and the 2nd accused was not supported by any evidence. He would also submit in his argument that whenever the primafacie proof of solemnization of marriage has not been shown to court, there would not be any offence committed by the 1st petitioner or any offence of abatement to enter second marriage and to commit the offence under Section 494 I.P.C by the other petitioners.
5.He would further insist in his argument that both the 1st petitioner and the 2nd accused are Christians and therefore, if any marriage is solemnized, it should be performed before any Church to which such persons are members. There is no such marriage has been pleaded by the respondent/complainant and the learned Judicial Magistrate ought not to have taken cognizance of the offence under Section 494 I.P.C. He would also rely upon a judgment of this Court report in 2008 (1) MLJ (Crl.) 425 between Dr.Jayakumar @ Javid Kamal in support of his argument. He would also submit that the respondent failed to plead and show to Court that there was a marriage held in accordance with Section 5 of Indian Christian Marriage Act and therefore, the complaint given against the petitioners has no legs to stand and accordingly, the same may be quashed.
6.The learned counsel appearing for the respondent/complainant would submit in his argument that the complaint was lodged by the respondent/complainant, seeking for taking action against the petitioners 1, 3 to 10 and also the 2nd accused for committing offence under Sections 120(B), 323, 494, 506(ii) read with 34 I.P.C. for the offence committed by all the accused on 02.08.2009, when they were solemnizing the marriage in between the 1st petitioner and the 2nd accused at the house of the 5th petitioner (6th accused). He would also submit that the offences were committed against the defacto complainant and her mother, by assaulting on the left cheek of the respondent/complainant by the 1st accused and other accused had abused both the complainant and her mother and threatened to kill them with dire consequences with iron rod in their hands and the 1st petitioner/1st accused and the 2nd accused were found as bride and bridegroom,, by wearing garlands and they have also exchanged garlands and the 1st accused put ring to the 2nd accused with the help of other accused and all other accused have joined with accused 1 and 2 in completing the marriage rituals, while the respondent/complainant, the wife of the 1st accused was alive.
7.He would further submit in his argument that the judgment relied upon by the learned counsel for the petitioners would not apply to the present case, since the judgment of this Court had dealt with a case, where, no marriage was spoken in the complaint or in the evidence, but only upon the admission of the accused persons. He would further submit that the respondent/complainant has stated about the marriage and whether it is a valid marriage or not need not be stated in the complaint or in the sworn statement and it would be sufficient if 2nd marriage is done for commission of offence under Section 494 I.P.C. He would also submit that other offences were committed by the accused persons on the same date and sufficient allegations have been stated in the complaint regarding the overt acts of all the accused and the quashment of the complaint as sought for by the petitioners cannot be granted even though the complaint under Section 494 I.P.C. is not made out, as argued by the petitioners. He would also submit that the occurrence connecting the offences have been stated in the complaint as well as spoken to by the witnesses and it has to be decided only at the time of trial and it can not be considered for quashment of the entire proceedings at this stage. He would rely upon the decision of the Hon'ble Apex Court reported in (1992) 2 SCC 213 between Mohinder Singh Vs. Gulwant Singh and others, in support of his argument for the proposition that the adequacy of evidence for supporting the complaint cannot be determined at this stage of 202 Cr.P.C. enquiry and the same cannot be dismissed in an enquiry under Section 203 Cr.P.C., but, it has to be determined only at the time of trial.
8.He would therefore request that the evidence adduced in support of the allegations made in the complaint regarding the marriage has to be considered only at the time of trial and not at this stage, to quash the complaint filed by the respondent. He would also submit that the petition has been filed by the petitioners in order to prolong the proceedings and therefore, he would request the Court to dismiss the petition and an expeditious trial of the case in C.C.No.164 of 2009 may be ordered.
9.I have given anxious thoughts to the arguments advanced on either side.
10.The present application has been filed by the petitioners, who are the accused Nos.1,3 to 10. The complaint has been lodged by the respondent as complainant against all the petitioners including one Koushalya, who was ranked as A2 in this case. The allegations were to the effect that the 1st accused has married the 2nd accused at the house of 6th accused, while the respondent/complainant was alive on 02.08.2009 and when the respondent and her mother went to the place after hearing the said news, they were beaten by the 1st accused and other accused had instigated the 2nd marriage and they also criminally intimidated the respondent as well as her mother and they also conspired for such commission of offence and they have acted with an intention to cause such offence and therefore, they are not liable to be punished under these provisions viz., 120(B), 323, 494, 506(ii) read with 34 I.P.C.
11.The said complaint was taken on file after examining the complainant and other witnesses under Section 202 Cr.P.C., and the learned Judicial Magistrate has ordered issuance of summons under Section 204 Cr.P.C. Now the petitioners (A1,3 to 10) have sought for quashment of the entire complaint, since the solemnization of marriage was said to have been done by the 1st accused with the 2nd accused as alleged in the complaint. But, it has not been either stated or spoken in the complaint as well. For that purpose, the petitioners have relied upon the judgment of this Court in 2008 (1) MLJ (Crl.) 425 between Dr.Jayakumar @ Javid Kamal, the relevant portion of the said judgment relied upon by the petitioners are as follows:
"As rightly contended by the learned counsel for the petitioner that under the charge of Bigamy, if the evidence showed that the essential ceremonies have not been performed cannot justify the conviction even though admitted by the accused and that the prosecution must prove that the second marriage was duly performed in accordance with the religious rites applicable to the form of marriage and an admission by the accused in this respect cannot be made the basis of conviction. A perusal of the statement of witnesses recorded under Section 161 of the Criminal Procedure Code during the course of investigation also shows that the necessary averments constituting an offence under Section 494 I.P.C. are conspicuously absent. The witnesses have simply stated that the petitioner had admitted to the complainant that he had married Mumtaz. Such a statement alone cannot be the basis for framing a charge under Section 494 I.P.C."
In the said judgment, it has been categorically decided that the rights and form of marriage have not been mentioned in the complaint and the complainant was relying upon an admission of the accused persons regarding the second marriage cannot be considered as sufficient to proceed with the trial. However, the respondent's counsel would rely upon the judgment of Hon'ble Apex Court reported in (1992) 2 SCC 213 between Mohinder Singh Vs. Gulwant Singh and others, in support of his arguments of the requirement of proof of valid of the marriage with requisite ceremonies and usage applicable to parties could be determined only at the stage of trial of the case and not at the stage of Section 202 Cr.P.C. enquiry. The relevant passage of the judgment relied on by the respondent counsel is found at Para 11, which is as follows:
"The scope of enquiry under section 202 is extremely restricted only to finding 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 enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of Code, the enquiry officer has to satisfy himself simple 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. Vide Vadilal Panchal V. Dattatraya Dulaji Ghadigaonker and Pramatha Nath Taluqdar V. Saroj Ranjan Sarkar."
12.Now the points for consideration before this Court is whether the allegation made in the complaint given by the respondent that the 1st petitioner and the 2nd respondent were found in the bridal wearing and other accused have arranged for the said marriage at the house of 6th accused and they have also exchanged garlands and the 1st accused had put a ring to the 2nd accused, despite the objection raised by the complainant and her mother.
13.No doubt it is true that a valid marriage in between two Christians should have been done in accordance with Section 5 of the Indian Christian Marriage Act. The allegation is that the marriage took place in between A1 and A2 on 02.08.2009, when the complainant was very much alive and present. Even the other rituals and other formalities were complied with by A1 and A2 as per Section 5 of Christian Marriage Act, it cannot be held as a valid marriage, since the complainant was alive on that day. Therefore, the argument advanced by the learned counsel appearing for the petitioners that the learned Judicial Magistrate ought to have considered that the requisites of Section 5 of the Indian Christian Marriage Act should have been complied with cannot hold water.
14.The 2nd marriage said to have been performed was very much stated by the respondent/complainant in her complaint and the same was also spoken to by the witnesses. In a judgment of this Court reported in 2008 (1) MLJ (Crl.) 425 between Dr.Jayakumar @ Javid Kamal, such averment were also not made in the complaint or in the FIR or in the 161(3) Cr.P.C. statements recorded by the police. It was commented by this Court that the admission of the accused regarding the 2nd marriage cannot be relied upon for the purpose of taking note of a cognizable offence under Section 494 I.P.C. Therefore, the facts of the present case are different from the facts of the case discussed in the judgment reported in 2008 (1) MLJ (Crl.) 425 between Dr.Jayakumar @ Javid Kamal.
15.The judgment of the Hon'ble Apex Court reported in (1992) 2 SCC 213 between Mohinder Singh Vs. Gulwant Singh and others, is squarely applicable to the present case since the factum of marriage whether it is 1st marriage or the 2nd marriage so as to decide as to the offence committed under Section 494 I.P.C. has to be considered only at the time of trial. In the present case, the 2nd marriage said to have been solemnized was stated in the complaint and spoken to by the witness. Whether there was any marriage in between A1 and A2, during the life time of the respondent/complainant has to be determined only in a full pledged trial and not at the stage of Section 203 Cr.P.C. enquiry or in a petition for quashment of the complaint.
16.Furthermore, the petitioners have sought for quashment of the entire complaint filed against them, which comprises the other offences also. If for any reason, this Court agreed that the view suggested by the petitioners that 2nd marriage has not been properly completed and shown to Court and offence under Section 494 I.P.C. has not been established, but, the other offences viz., 323, 506(2) read with 34 and 120(B) I.P.C. have been prima facie shown to have committed by the accused persons. Therefore, the other offences also cannot be quashed. In the said circumstances, all the offences, which were said to have been committed by the accused persons have to be decided only at the time of trial.
17.In the said circumstances, the quashment of the entire proceedings in C.C.No.164 of 2009 pending on the file of the Judicial Magistrate, Boothapandi, against the petitioners cannot be ordered.
18.For the foregoing reasons, I am of the considered opinion that the petition filed by the petitioners/A1, 3 to 10 is liable to be dismissed and accordingly, the same is dismissed.
19.The request of the learned counsel appearing for the respondent for the expeditiously disposal of the trial is necessarily to be ordered and accordingly, the learned Judicial Magistrate, Boothapandi is directed to dispose of the case in C.C.No.164 of 2009, as expeditious as possible within a period of six months from the date of receipt of a copy of this order. Consequently connected miscellaneous petitions in M.P.(MD) Nos.1 of 2009 and 1 of 2010 are closed.
arul To
1.The Judicial Magistrate, Boothapandi.
2.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.