Madras High Court
J.Gnanakumar vs Joy Kanmani on 20 August, 2013
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.08.2013
CORAM
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
Crl.O.P(MD)No.4073 of 2009
and
Crl.O.P(MD)Nos.5910 and 5942 of 2009
and
M.P.(MD)Nos.1, 1, 1 of 2009 & 1 of 2010
J.Gnanakumar : Petitioner in
Crl.O.P(MD)No.4073/2009
1.V.P.Rajan
2.Rita Ernest
3.Sivamayam
4.Gnanamani Susila
: Petitioners
in Crl.O.P(MD)No.5910/2009
Muthulakshmi : Petitioner
in Crl.O.P(MD)No.5942/2009
vs.
Joy Kanmani : Respondents in all Crl.O.Ps.
Prayer (in all Crl.O.Ps)
Criminal Original Petitions filed under section
482 of Code of Criminal Procedure, to call for the records in C.C.No.104 of
2009, on the file of the learned Judicial Magistrate No.II, Virudhunagar and to
quash the same.
!For Petitioners
(in Crl.O.P(MD)Nos.
4073 and 5910/2009 : Mr.T.Senthil Kumar
For Petitioner : Mr.T.Senthil Kumar
in Crl.O.P.No.5942/2009 for Mr.T.J.Ebenezercharles
^For Respondents : Mr.K.P.Narayanakumar
(all Crl.O.Ps)
:COMMON ORDER
Seeking the relief of quashing the entire criminal proceedings of the case in C.C.No.104 of 2009, on the file of the learned Judicial Magistrate No.II, Virudhunagar, the petitioners have filed the above criminal original petitions after invoking the inherent jurisdiction of this court under Section 482 Cr.P.C.
2.With the issue involved in these criminal original petitions is one and the same, all the petitions have been clubbed together, heard jointly and disposed of in this common order.
3.The respondent, in all the petitions, is the wife of Mr.J.Gnanakumar, who is the petitioner in Crl.O.P(MD)No.4073 of 2009, whereas the petitioner in Crl.O.P(MD)No.5942 of 2009 Mrs.Muthulakshmi is said to be the second wife of Mr.J.Gnanakumar. The petitioners 1 to 4 in Crl.O.P(MD)No.5910 of 2009 are the sisters and brother-in-laws of Mr.J.Gnanakumar(A1).
4.The petitioners in all the petitions have been ranked as A1 to A6 in the private complaint in C.C.No.104 of 2009, which appears to have been filed by the respondent, before the learned Judicial Magistrate No.II, Virudhunagar.
5.The learned Judicial Magistrate No.II, Virudhunagar, has taken cognizance of the offence under section 494 IPC, as against the first petitioner Mr.J.Gnanakumar (A1) and under sections 494 r/w 109 and 120(B) IPC, as against the remaining petitioners viz., A2 to A6 and therefore summons were ordered to be issued to the petitioners (A1 to A6) directing them to appear for the hearing on 13.05.2009.
6.Under the above circumstances, the petitioners (A1 to A6) were constrained to file the above criminal original petitions seeking the relief of quashing the criminal proceedings pertaining to the case in C.C.No.104 of 2009, on the ground that no ingredients, as envisaged under sections 494 r/w 109 and 120(B) IPC, are made out against them.
Facts in brief:
7.The respondent/complainant Mrs.Joy Kanmani, who claims to be the wife of the first petitioner Mr.J.Gnanakumar (A1) has filed a private complaint under sections 190, 191 r/w 198(A) and 200 Cr.P.C., before the learned Judicial Magistrate No.II, Virudhunagar, against the above petitioners alleging that the Accused 2 to 6 had conspired together, to marry the petitioner Muthulakshmi in Crl.O.P(MD)No.5942 of 2009 as the second wife to the first petitioner Mr.J.Gnanakumar (A1), when the marriage between the respondent/complainant and Mr.J.Gnanakumar is in subsistence.
8.It is also alleged that the first petitioner Mr.J.Gnanakumar (A1) knowing fully well that the respondent/complainant is his legally wedded wife, had deliberately married the petitioner Muthulakshmi as his second wife with the active aid of the remaining petitioners (A2 to A6).
9.That on 16.09.1985, the marriage between the respondent/complainant Mrs.Joy Kanmani and the first petitioner Mr.J.Gnanakumar (A1) was solemnized at T.E.L.C.Church at Virudhunagar, in accordance with the religious custom. During the course of their wedlock, the respondent/complainant had conceived and therefore, she was brought to her parent's house for her first delivery.
10.That on 04.07.1986, a male child, namely G.Victor Stanly was born to the respondent/complainant, till then the first petitioner Mr.J.Gnanakumar (A1) had been visitng the respondent/complainant frequently at her parent's house.
11.It is also alleged that the first petitioner Mr.J.Gnanakumar (A1) had represented the respondent/complainant that his parents would come and take her along with the child to the matrimonial home and thereafter he went away. During the later period, he did not visit the respondent/complainant in her parent's house even after passing of several months. His whereabouts were also known to the respondent/complainant. When enquired with the other petitioners (A3 to A6) viz., Mr.J.Gnanakumar's sisters and brother-in-laws, they had also not given proper details about the whereabouts of the first petitioner Mr.J.Gnanakumar (A1).
12.On one occasion, the respondent/complainant was informed by the petitioners in Crl.O.P(MD)No.5910 of 2009, who are the sisters and brothers-in- laws of the first petitioner Mr.J.Gnanakumar (A1) saying that he was no longer willing to live along with her and therefore, he had married the petitioner Muthulakshmi (in Crl.O.P(MD)No.5942 of 2009). But they had also refused to divulge the whereabouts of the first petitioner Mr.J.Gnanakumar (A1).
13.The respondent/complainant and her parents had negotiated with her husband Gnanakumar(A1) in the presence of village elderly people to live along with the respondent/complainant, but the petitioner Gnanakumar had been giving evasive answer. Thereafter, the respondent/complainant and her son, are in the custody of her father and he in-turn had filed a petition in MC No.8 of 1990, on the file of the learned Judicial Magistrate No.II, Virudhunagar, claiming maintenance for his daughter's son. That petition was allowed and Gnanakumar was directed to pay a sum of Rs.300/- per mensum to his daughter's son towards maintenance. Then, the respondent/complainant was put to understand that her husband Gnanakumar and Muthulakshmi, the petitioner in Crl.O.P(MD)No.5942 of 2009, had been living as husband and wife in a rented house. One Vimala, who is none other than the daughter of her maternal Aunt was also employed at Tamil Nadu Agricultural Engineering Department in Trichy, where the petitioner Gnanakumar was working and from there, she had collected certain information about the residential address of her husband. When she went there, she was abused by the petitioner Gnanakumar and Muthulakshmi. This was also informed to the respondent/complainant. Thereafter, the respondent/complainant along with her parents had met Gnanakumar at Trichy and he had also given his consent to live along with the respondent/complainant and accordingly, on 24.08.2000, she came to Virudhunagar along with the respondent/complainant. But the petitioners in Crl.O.P(MD)No.5910 of 2009 had lodged a complaint before K.K.Nagar Police Station, Trichy, on 26.08.2000 and based on that, a case in crime No.173 of 2000 under sections 147, 448, 323 and 367 IPC was registered against her alleging that they had kidnapped. Ultimately, they were acquittal of the charges.
14.During the pendency of the above case, in the petition in Crl.M.P.No.2102 of 2000, the petitioner Gnanakumar and Muthulakshmi had given the same address, as if both are residing at Door No.7-B/2, Kaveri Street, Ayyappan Nagar, Trichy 21. The respondent/complainant has also alleged that the petitioner Muthulakshmi had joined as a Typist in the Tamil Nadu Electricity Board and in her service record, she had given the petitioner Gnanakumar's name as J.G.Kumar, on 15.06.1999. She has further stated that when her marriage with the petitioner Gnanakumar in Crl.O.P(MD)No.4073 of 2009 is in subsistence all the petitioners accused had conspired together and in furtherance of their criminal conspiracy, solemnized the marriage of the petitioners Muthulakshmi and Gnanakumar and thereby, the petitioner Gnanakumar had committed the offence punishable under section 494 IPC and the remaining petitioners had committed the offences punishable under sections 494 r/w 109, 120(B) and 506(ii) IPC.
15.The learned Judicial Magistrate No.II, Virudhunagar, had taken the said private complaint on his file in C.C.No.104 of 2009 and taken cognizance of the offences under section 494 IPC as against A1, the petitioner Gnanakumar and 494 r/w 109 and 120(B) IPC as against the remaining petitioners.
16.Now the above private complaint is sought to be quashed, in these petitions, on the ground that the learned Judicial Magistrate No.II, Virudhunagar, has wrongly taken cognizance of the above said offences as against the petitioners.
17.Heard Mr.T.Senthil Kumar, the learned counsel appearing for the petitioners and Mr.K.P.Narayanakumar, the learned counsel appearing for the respondent.
18.Mr.T.Senthil Kumar, the learned counsel appearing for the petitioners, in all the petitions, has adverted to that the respondent/complainant had filed the above private complaint, suppressing the earlier petition filed before the Family Court, Madurai, in DOP No.37 of 2005 for a decree of restitution of conjugal rights.
19.He has added further that in the said petition in DOP No.37 of 2005, the petitioner Gnanakumar had filed his counter statement on 19.10.2005. In his counter statement, he has alleged that the respondent/complainant had developed illicit intimacy with one Arthur Sundararajan and she used to meet him frequently in a clandestine manner. He has also alleged that when the respondent/complainant was caught red handed, she had openly declared Mr.Gnanakumar that he should either ignore or acquiesce with the act of the complainant having intimacy with the said Arthur Sundararajan, so as to run a smooth life. Based on the allegations in his counter statement, the respondent/complainant had filed a private complaint in C.C.No.37 of 2006 on the file of the learned Judicial Magistrate No.VI, Madurai, under sections 499 and 498(A) IPC against the petitioner Gnanakumar stating the above said allegation is defamatory in nature and subsequently that complaint was quashed by this court on 16.11.2007 and made in Crl.O.P(MD)No.6209 of 2006.
20.The learned counsel appearing for the petitioners has also argued that after the disposal of DOP No.37 of 2005 on the file of the learned Family Court, Madurai, the respondent/complainant has preferred the present complainant in C.C.No.104 of 2009 pending on the file of the learned Judicial Magistrate No.II, Virudhunagar, which is sought to be quashed in these petitions.
21.On perusal of the averments in the petitions, this court is able to find:-
(a)That on 16.09.1985, the petitioner Gnanakumar had married the respondent/complainant in accordance with religious custom at Reformation Jubilee Church, TELC, Virudhunagar;
(b)On 18.12.1985, the respondent/complainant had voluntarily dissolved the petitioner Gnanakumar and she has been living separately till date;
(c)On 18.08.2005, the respondent/complainant had filed a petition under Indian Divorce Act, on the file of the Family Court, Madurai, in DOP No.37 of 2005 seeking a direction to the petitioner Gnanakumar to resume cohabitation with her;
(d)That on 05.12.2005, the respondent/complainant had filed a complaint against the petitioner Gnanakumar under sections 499 and 498A IPC, on the file of the learned Judicial Magistrate No.VI, Madurai, based on the allegations made by the petitioner Gnanakumar, in his counter statement filed in DOP No.37 of 2005, that complaint was taken on its file by the learned Judicial Magistrate No.VI, Madurai.
(e)That on 16.11.2007, the above said complaint was quashed by this court in Crl.O.P.(MD)No.6209 of 2009, which was filed by the petitioner Gnanakumar.
(f)Further, on 28.04.2008, the learned Family Court, Madurai, had dismissed the petition filed by the respondent/complainant in DOP No.37 of 2005.
After the dismissal of the above said petition, the present private complaint in C.C.No.104 of 2009 appears to have been filed on 15.05.2008.
22.Based on the grounds of the petitions and on the basis of the statement made by Mr.T.Senthil Kumar, the learned counsel for the petitioners, the following points are arisen for the consideration of this court.
(i)Whether the private complaint in C.C.No.104 of 2009 has been filed by the respondent/complainant with mala fide intention?
(ii)Whether any such offence is made out as against the petitioners, as the entire averments are based on his evidence?
(iii)Whether the respondent/complainant has failed to disclose the fact that the alleged second marriage of the petitioner Gnanakumar with the petitioner in Crl.O.P(MD)No.5942 of 2009 Muthulakshmi was a valid, marriage duly performed in accordance with the essential religious rites, applicable according to the law of customs of the parties?
23.On perusal of the complaint in C.C.No.104 of 2009, which is sought to be quashed herein, it appears that the respondent/complainant has filed the said complaint under section 190, 191 r/w.198(A) and 200 Cr.P.C.
24.With regard to the provision of sections 190 and 191 of Cr.P.C., Mr.T.Senthil Kumar, the learned counsel for the petitioners has adverted to that the learned Judicial Magistrate No.II, Virudhunagar, without applying his judicial mind, had wrongly interpreted the provisions and taken the complaint on his file.
25.With regard to 198-A Cr.P.C., it is imperative on the part of this court to extract the said provisions as under:-
"198-A Prosecution of offences under section 498-A of the Indian Penal Code:- No Court shall take cognizance of an offence punishable under section 498-A of the Indian Penal Code (45 of 1860), except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption."
26.In so far as the private complaint in C.C.No.104 of 2009 is concerned, the respondent/complainant has sought the learned Judicial Magistrate No.II, Virudhunagar, to punish the petitioners under sections 494 r/w.109, 120(B) and 506(ii) IPC.
27.It may be relevant to note here that no ingredients to make out an offence under section 498(A) IPC are available in the private complaint and therefore, the inclusion of section 198(A) Cr.P.C in the caption of the complaint is absolutely wrong.
28.On the other hand, Mr.K.P.Narayanakumar, the learned counsel appearing for the respondent, while advancing his argument, has drawn the attention of this Court in paragraph No.8 of the complaint, wherein the complainant has alleged that her junior maternal Aunt one Vimala had enquired one Shyamala Kamatchi who is the landlady of the house in which the petitioner Gnanakumar and Muthulakshmi were residing about the whereabouts of A1 and A2. While so, the landlady Shyamala Kamatchi had told her that she had let out her house to A1 and A2 believing that they were husband and wife. At that time, the petitioner Gnanakumar had abused the said Vimala and asked to her, as to who had given this address.
29.Besides this, Mr.K.P.Narayanakumar, the learned counsel for the respondent has also filed a typed set of papers, containing the copies of the service record of Muthulakshmi, the First Information Report in Crime No.173 of 2000, on the file of the K.K.Nagar Police Station, Trichy and 161(3) Statement of Muthulakshmi in Crime No.173 of 2000 and the application submitted by Muthulakshmi before the LIC.
30.In this connection, the learned counsel for the respondent has argued that in GPF nominee form, which is being maintained in the service record of her Department TNEB, where she has been working, in the first column with regard to name and full address of the nominee, it has been stated as 'J.G.Kumar, 7-B/2, Kaveri Street, Ayyappa Nagar, Trichy-21.' With reference to the above details, he has also canvassed in column No.2 the Relationship with the subscriber, has been stated as 'Husband' and therefore, this piece of evidence would go to establish the fact that the petitioner Muthulakshmi is the second wife of Gnanakumar.
31.The learned counsel for the respondent has also argued that in column No.6 of the application submitted by Muthulakshmi, with regard to her marital status, she has stated as 'Married.' In the First Information Report relating to the case in Crime No.173 of 2000 on the file of the K.K.Nagar Police Station, Trichy, the complainant therein one V.P.Rajan, who is none other than the brother-in-law of the petitioner Gnanakumar and the first petitioner in Crl.O.P.(MD)No.5910 of 2009 has stated that the petitioner Gnanakumar had suffered mentally, after the dissolution of his first wife and therefore, he had been taking treatment in Ervadi Dharga and during the period of his treatment, he was assisted by the petitioner Muthulakshmi. Latter on, he had taken her along with him and subsequently, he has been residing at Ayyappa Nagar, Trichy.
32.Mr.K.P.Narayanakumar, the learned counsel appearing for the respondent has also argued that the above materials would go to establish the fact that Muthulakshmi was the second wife of the petitioner Gnanakumar, which was an offence punishable under section 494 IPC, as the marriage with the first wife i.e., the respondent/complainant was still in subsistence. In order to support his contention, he has also added in the application submitted to LIC in column No.25 also she had stated in that the reason for her leaving is "Getting married". In her 161(3) Statement recorded in the case Crime No.173 of 2000, she has stated that still she had not married, but 10 years before a man had promised her that he would marry her and developed intimacy with her. With the result of her intimacy with him, she had delivered a male baby, namely Jeory and she has also stated that when Gnanakumar had joined in the Agricultural Engineering Department, as Assistant, he was staying in Kavery Street at Trichy and used to visit her house, whenever he fell ill. This was suspected by the respondent/complainant, as if Gnanakumar was in illicit intimacy with her.
33.In support of his contention, Mr.K.P.Narayanakumar, has placed reliance upon the following three decisions:-
01.Mohinder Singh vs. Gulwant Singh and others reported in (1992)2 SCC
213.
02.Jagdish Ram vs. State of Rajasthan and another reported AIR 2004 SUPREME COURT 1734.
03.Kamu alias Kumu Ammal and others vs. M.Muthayya and another, reported in AIR 1993 SUPREME COURT 1689.
34.In Mohinder Singh vs. Gulwant Singh and others reported in (1992)2 SCC 213, the three Judges Bench of the Apex Court has observed that:-
"11.This Court as well as various High Courts in a catena of decisions have examined the gamut and significance of Section 202 of the Code and settled the principle of law, the substance of 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 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. Vide Vadilal Panchal vs. Dattatraya Dulaji Ghadigaonker [(1961)1 SCR 1: AIR 1960 SC 1113: 1960 Cri LJ 1499] and Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar [1962 Supp 2 SCR 297: AIR 1962 SC 876: (1962)1 Cri LJ 1499].
"12.In the present case, the High Court appears to have exceeded the scope of the enquiry contemplated under Section 202 of the Code and has gone into the question of sufficiency of evidence for conviction of the offence of bigamy.
Further, in view of the admission made by the learned counsel for the respondents admitting before us the marriage of Darshan Singh with Mohinder Pal the conclusion arrived at by the court in the impugned order that the complaint does not contain any allegation of the performance of the marriage of Mohinder Pal with Darshan cannot be sustained and is liable to be set aside."
35.In an another decision in Jagdish Ram vs. State of Rajasthan and another reported AIR 2004 SUPREME COURT 1734, it has been held as follows:-
"10.In the instant case the order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Ss.200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizances of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
36.Mr.K.P.Narayanakumar, the learned counsel appearing for the respondent has also relied on an another decision in Kamu alias Kumu Ammal and others vs. M.Muthayya and another reported in AIR 1993 SUPREME COURT 1689, wherein it has been held as follows:-
"6.It is thus, obvious that the registered maintenance deed was signed by the first wife of Sundaram and was attested by her mother. The document specifically states that Sundaram contracted second marriage with Kamu in the year 1948. The High Court refused to rely on the maintenance deed Exhibit A-16 on the following reasoning:
"It is significant to note that in Ex.A-16, the date of the second marriage is not mentioned. As the earliest document coming into existence after the alleged second marriage, one would have expected Meenakshisundaram to have remembered the date of marriage and to have mentioned it, as it is not far removed from 1948 when the said marriage is said to have taken place. The vague reference to the year 1948 is significant, because in Madras a statute has been passed as the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, (Madras Act VI of 1949). As the title itself shows, this Act prevented a second marriage between Hindus, perhaps, it was, considered necessary to select a date anterior to the coming into force of this Act, so that the validity of the second marriage would not be affected by it. The vague reference in Ex.A-16 to the marriage between the first plaintiff and Meenakshisundaram in 1948 cannot in these circumstances, be taken to establish as a fact the marriage in 1948. It does not even refer to the place where the second marriage is alleged to have taken place. Ex.A-16 is thus of no avail to prove the second marriage."
37.With reference to the above decisions, Mr.K.P.Narayakumar, the learned counsel for the respondent has argued that the GPF Nomination Form submitted by the petitioner Muthulakshmi to her Department TNEB, where she was working and the First Information Report in Crime No.173 of 2000, which was registered based on the complaint lodged by the first petitioner in Crl.O.P(MD)No.5910 of 2001 and 161(3) Statement of Muthulakshmi, in the above said case in crime No.173 of 2000 and the application submitted by Muthulakshmi before the LIC, would go to establish the fact that she was married by the petitioner Gnanakumar, as his second wife, when his marriage with the respondent/complainant was in subsistence and therefore, he has urged that all the three petitions be dismissed, as the learned Judicial Magistrate No.II, Virudhunagar, had rightly taken cognizance of the offences under sections 498 r/w 109, 120(B) and 506(ii) IPC.
38.On the other hand, Mr.T.Senthil Kumar, the learned counsel appearing for the petitioners, has contended that the private complainant filed in C.C.No.104 of 2009 filed by the respondent/complainant was vexatious and the allegations contained in that complainant did not constitute any offence much- less under sections 494, r/w.109, 120(B) and 506(ii) IPC and therefore, he has urged to quash the entire proceedings of the complaint in C.C.No.104 of 2009 pending on the file of the learned Judicial Magistrate No.II, Virudhunagar.
39.The learned counsel for the petitioners has also argued that the learned Judicial Magistrate No.II, Virudhunagar, had miserably failed to consider the fact that no averments were made out in the complaint for the alleged offence under section 494 IPC and that he had also failed to consider that there was no specific allegation with regard to when, where and what form of marriage was solemnized between A1 and A2 in the alleged complaint and also the learned Judicial Magistrate had failed to consider the fact that as to how, the other petitioners had intentionally aided the offence by knowing them.
40.In order to constitute the offence under section 494 IPC, the following ingredients are very much essential:-
"(i)Existence of the first wife or husband when the second marriage is celebrated;
(ii)The second marriage being void by reason of the subsistence of the first according to the law applicable to the person violating the provisions of the section.
Besides this, the section itself provides three exceptions, which are:-
(i)Continual absence of one of the parties for the space of seven years;
(ii)The absent spouse not having been heard of by other party as being alive within that time; and
(iii)The party marrying must inform the person with whom he or she marries of the above fact.
In order to bring home an offence under section 494 I.P.C., the prosecution is to prove:-
(a)there is a couple validly married;
(b)that a spouse of the said couple has entered into a so called wedlock with another man or woman as the case may be;
(c)that such second wedlock is void by reason of its taking place during the life time of such valid husband or valid wife;
(d)that the essential ceremony if needed for marriage was performed e.g. Saptapadi was performed so far as the second socalled marriage is concerned. For conviction under Section 494 I.P.C, the following must be proved:
(a)that the complainant had been validly married to the accused;
(b)that the accused contacted a second marriage during the subsistence of the first;
(c)that both the marriages were valid and strictly according to law governing the parties.
41.On coming to the instant case on hand, as adumbrated at the opening paragraph of this order, all the petitions have been filed under section 482 of Cr.P.C to quash the criminal proceedings pertaining to the private complaint in C.C.No.104 of 2009, on the file of the learned Judicial Magistrate No.II, Virudhunagar.
42.In this connection, this court would like to place it on record that for the purpose of invoking its inherent jurisdiction under section 482 of Cr.P.C, the High Court has to be fully satisfied, that the materials produced by the petitioners/accused are such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts. When the accused in a case chooses to quash the initiation of prosecution against him at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges, the High Court could make such orders as may be necessary to prevent abuse of process of any Court, or otherwise to secure the ends of justice. The same parameters would naturally be available for later stages as well. The power vested with the High Court under section 482 Cr.P.C at the stages referred to herein-above would have a far reaching consequence, inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. But such a determination must always be rendered with caution, care and circumspection. This principle of law has been laid down by the Apex court in the recent judgment reported in 2013 SAR (Criminal) 316 in the case of Rajiv Thapar & Others vs. Madan Lal Kapoor.
43.In the given case on hand, this court finds a reply notice sent by the petitioner Gnanakumar to the respondent/complainant for her legal notice prior to the filing of DOP No.37 of 2005, on the file of the Family Court, Madurai, claiming the petitioner Gnanakumar to resume cohabitation with the respondent. In his reply, the petitioner Gnanakumar has stated that the respondent/complainant had developed illicit intimacy with one Arthur Sundararajan and as such, she had been living in adulterous life with him. It is revealed from his reply notice that on 08.12.1985, the respondent/complainant had left him and has been living separately till today. It is also revealed that the petitioner Gnanakumar had filed a divorce petition and subsequently, it was not-pressed, as he was called by the respondent for settlement, but no settle was arrived at.
44.It is also revealed that the petitioner Gnanakumar had been taking treatment at Ervadi Dharga for more than 5 years for his mental disorder. During that period, the respondent/complainant had never taken any steps to assist the Gnanakumar, while he was taking treatment and on account of this reason, he has stated in his reply notice that he had lived with the respondent/complainant for a short period and therefore, he had voluntarily left him on 08.12.1985 and ever-since, she had been living separately. He would further stated that during the course of his treatment at Ervadi, he was left un-care and taking pity on him, the petitioner Muthulakshmi, who came there for the treatment of her mother helped him, but he has vehemently denied the allegation that he had married her as the second wife.
45.In this connection, Mr.T.Senthil Kumar, the learned counsel for the petitioners has argued that that the petitioner Gnanakumar was belonged to Christian community, whereas the petitioner Muthulakshmi was belonged to Hindu religion and therefore, if it was presumed that the said petitioner Gnanakumar had married her, in-fact their marriage would be vitiated in the absence of his validity. For want of sanctity, even if it was presumed that the petitioner Gnanakumar had married Muthulakshmi, it was absolutely not valid one and therefore, it could not be brought under the ambit of section 494 IPC.
46.He would further argue that from 08.12.1985 onwards i.e., for more than 7 years, the respondent/complainant had been living separately after voluntary dissolution and therefore, the right of conjugal relationship was abruptly denied by the respondent/complainant herself and as such, there was every reason for the voluntary dissolution of her marital life with Gnanakumar and therefore, there could not be any claim that her marital relationship with the petitioner Gnanakumar was still in subsistence.
47.As per Thomas Jones (1842) Car & Mar 614, where the accused's first wife had left him for sixteen years and it was proved by the second wife that she had known him for nine years, living as a single man, and that she had never heard of the first wife, who, it appeared, had been living seventeen miles from where the accused resided, it was held that the accused was not guilty of bigamy.
48.In the instant case also, the petitioner Gnanakumar has not disputed the first marriage with the respondent/complainant.
49.Mr.T.Senthil Kumar, the learned counsel for the petitioners has submitted that the respondent/complainant had deserted the petitioner Gnanakumar on 08.02.1985 and from that date onwards i.e., for the past 37 years, the petitioner Gnanakumar had been living separately and the respondent/complainant had been living separately without taking care of her husband. Having failed in her attempt to run the congenial benefits and having deprived of her right carrier in the stand, now it was not open for the respondent/complainant, to come and say that the petitioner Gnanakumar had been living with the petitioner Muthulakshmi in a adulterous life, which amounts to an offence punishable under section 494 of IPC under the table caption of bigamy.
50.Mr.T.Senthil Kumar, the learned counsel appearing for the petitioners has also reiterated his argument saying that in fact, the petitioner Muthulakshmi during the year 1993 to 1995 had helped the petitioner Gnanakumar at Ervadi, while he was taking treatment, where her mother was also taking treatment. Except this, no other relationship much-less illicit relation between the petitioner Muthulakshmi and Gnakakumar.
51.In support of his argument, the learned counsel for the petitioners has placed reliance on the decision reported in 1987 CRLJ 1048 MAD [C.S.Varadachari and others vs. C.S.Shanti]. In this case, the learned single Judge of this court has made reference to the decision in Macculoch v. State, 1974 Cri LJ 182 (Cal), wherein it is held that:
"The provisions of S.200 are not a mere formality, but have been intended by the Legislature to be given effect to for the protection of the accused persons against unwarranted complaints."
52.The learned Judge has also observed on the same line, which was held in Ram Ranjan Roy vs. Emperor (1915)ILR 42 Cal 422 as follows:-
"A conviction under S.114, I.P.C. cannot stand where the abetment charged necessarily requires the presence of the abettor. To come with in the section, the abetment must be complete apart from the mere presence of the abettor."
53.The learned single Judge has also made reference to another decision in Malanrama vs. State, ILR 1958 Bom 700: (1960 Cri LJ 1189), wherein it was held that:-
"In the circumstances of the case, the mere presence of the accused at the ceremony knowing that the offence of bigamy was being committed and the throwing of holy rice over the couple did not amount to abetement of bigamy notwithstanding that accused No.3 had distributed pan after the ceremony."
54.It has also been held in an another decision in Muthammal vs. Maruthathal, 1981 Mad LW (Cri) 80: (1981 Cri LJ 833) that:-
"The definition of abetment in S.107 I.P.C., includes not merely instigation, which is the normal form of abetment, but also conspiracy and aiding, and those three forms of abetment are dealt with, in the proviso to S.111, I.P.C. Investigation must have reference to the thing that was done. By mere association of the accused persons in this case, who are charged with an offence of abetment of the principal offender, in the absence of any material to show that there was instigation by the petitioners or that there was any intention either in aiding or in the commission of the offence committed by the first accused, it cannot be said that they have committed an offence of abetment."
55.In Smt.Priya Bala Ghosh vs. Suresh Chandra Ghosh reported in 1971 STPL (LE) 5942 SC, it is held by the Hon'ble Division Bench of the Apex court that:-
"The prosecution has to prove that the alleged second marriage, was a valid marriage, duly performed in accordance with the essential religious rites applicable according to the law and custom of the parties."
56.It has also been held that:-
"The statement in the earlier proceedings in relation to the complaint under S.494 I.P.C., could not be relied upon because: (although strictly it was not a confession nevertheless, if acted upon it would tend to incriminate the respondent (who was in the position of an accused) and therefore he was entitled to be given an opportunity of offering his explanation, if any, in respect of such incriminating statement; (b)such opportunity was not given to the respondent and it was not put to him when he was examined under S.342 Cr.P.C and [c] such an admission cannot in law be treated as evidence of the second marriage having taken place in a bigamy case."
57.On perusal of the records, it is revealed that the sworn statement of the respondent/complainant alone appears to have been recorded on 03.06.2008 by the learned Judicial Magistrate No.II, Virudhunagar. But, though two more witnesses appears to have been specified in the complaint, their sworn statements were not recorded.
58.Section 200 clearly envisaged that:-
"A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a)if the public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b)If the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
59.The objection of the examination under section 200 is to find out whether there is a prima facie case against the accused and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. This principle has been laid down in Nirmaljit Hoon Vs. State of W.B. [(1973)3 SCC 753].
60.It is also pertinent to note here that the scope of enquiry provided under sections 200 and 202 is limited to the ascertainment of the truth or falsehood of the allegation made in the complaint. The decision of the Magistrate can only be based on the materials placed before the complaint. The enquiry is limited for the purpose to find out, as to whether prima facie case for the issue process has been made. For deciding the question only the complaint, sworn statement of the witnesses if any and others can be considered.
61.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 as to whether process should be issued or not under section 204 of the Code or whether the complaint should be dismissed under section 203 on the footing that there is no sufficient ground for proceeding on the basis of the statement of the complainant and of his witnesses, if any examined by him.
62.This court has carefully perused the materials available on record, averments of the complaint as well as the other materials available on record.
63.As rightly argued by Mr.T.Senthil Kumar, the learned counsel appearing for the petitioners, the learned Judicial Magistrate No.II, Virudhunagar has miserably failed to consider the fact that no averments were made in the complaint with regard to when, where and what forum of marriage has been solemnized between Gnanakumar and Muthulakshmi and the averments made in the complaint is also silent with regard to the fact that in which way the remaining petitioners have abetted the petitioner Gnanakumar to have the second marriage with the petitioner Muthulakshmi.
64.In the light of the observations made above, this court of the considered view that the respondent/complaint has not made out any prima facie case to proceed against the petitioners under section 494, 498A r/w 109 and 120(B) IPC and therefore, the entire proceedings in C.C.No.104 of 2009 on the file of the learned Judicial Magistrate No.II, Virudhunagar are liable to be quashed. Accordingly, the proceedings in C.C.No.104 of 2009 on the file of the learned Judicial Magistrate No.2, Virudhunagar are quashed and accordingly, all the criminal original petitions are allowed. Consequently, connected Miscellaneous Petitions are closed.
er To, The Judicial Magistrate No.II, Virudhunagar.