Rajasthan High Court - Jodhpur
Kapil vs State & Anr on 16 August, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 414 / 2015
Kapil Parihar S/o Ravindra Singh, by caste Mali, age 39 years, R/o
C/o Dishi Malhotra, Lal Maidan, Paota C Road, Army Children
Academy School, Near Income Tax Office, Jodhpur.
----Petitioner
Versus
1. State of Rajasthan through Public Prosecutor Office of Public
Prosecutor, Jodhpur.
2. Santosh W/o Kapil Parihar, age 31 R/o Saint Balram Das Colony,
Nataur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr,. Sudhit Tak
For Respondent(s) : Mr. MS Panwar, PP
Mr. Sunil Mehta, for the complainant
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 16/08/2017
1. Petitioners have preferred this misc. petition under Section 482 of Cr.P.C. for quashing and setting asie the order dated 24.06.2014 passed by the learned Chief Judicial Magistrate, Nagaur in case No.416/2014 as well as order dated 16.12.2014 passed by the learned upper session Judge, Nagaur in case No.39/2014.
2. Learned counsel for the petitioner has relied upon the precedent law in Dr. Prem Mittal Vs. State of Rajasthan & Ors. Reported in 2000 0 CrLR 372, the relevant portion of this judgment which reads as under :-
" 7. At the stage of taking cognizance of an offence and summoning a person as an accused thereof it is required that the facts constituting the commission of the alleged offence be brought on the record of the case. At that stage of the proceedings the Court has simply to feel satisfied mat there was prima facie sufficient evidence disclosing the commission of the alleged offence and justifying the issue of process and summoning the person complained of as accused thereunder. Prima facie evidence in that sense of the matter means legally admissible evidence and not inadmissible evidence and inferences drawn from such inadmission evidence. Where a person has been accused of having committed the offence of Bigamy punishable under Section 494,1.P.C. it is required that the facts constituting the offence under Section 494,1.P.C. be proved by legal evidence to establish prima facie case justifying the summoning of the person as accused for offence under Section 494,1.P.C. Therefore, prima facie evidence to prove the second marriage by him has to be brought on the record of the case. In order to prove the second marriage, the performance of the essential ceremonies requisite to constitute a legal and valid marriage according to the rites and tenets of the religion professed by the parties or to the legal custom prevalent in the section of society they belong to, has to be proved. If no evidence is brought on record to prove the second marriage in the way stated above, there would be no prima facie evidence in support of the second marriage and the person or persons, who are being accused of having been involved in or concerned with the performance of second marriage, cannot be summoned as accused thereof in a given case.
10. It is thus well settled in law that in order to accuse a person of having committed the offence of Bigamy punishable under Section 494,1.P.C. it has to be specifically pleaded and prima facie proved that he has contracted a second marriage, after performing the essential ceremonies required for constituting a marriage as per rites and tenets of the religion practised by the parties concerned or according to the customs prevalent in their caste, community or society. Desertion of the first wife by the husband and his living with another woman would not by itself be sufficient to establish his second marriage with the other woman for the purposes of Section 494,1.P.C. In order to attract that provision for summoning the husband under Section 204, C.P.C. as an accused thereunder prima facie evidence on the requisite ceremonies performed at the time making the alleged second marriage is required to be brought on the record of the case. "
3. Learned counsel for the respondent however, opposed the same and relied upon the judgment of Mohinder Singh Vs. Gulwant Singh & Ors. Reported in (1992) 2 Supreme Court Cases 213, the relevant portion of this judgment which reads as under :-
"Lastly relying on a decision of this Court in Shanti Deb Berma v. Smt. Kanchan Prava Devi to which one of us (S. Ratnavel Pandian, J) was a party, it was submitted by the learned Counsel for the respondents that in the absence of an allegation that the marriage of Darshan Singh with Jagjit Kaur was celebrated in accordance with the customs dispensing with the requisite ceremonies and usage applicable to the parties, the alleged first marriage should be held to have been not proved in the eye of law. This submission is not available to him at this stage because that can be determined only at the stage of the trial of the case. "
4. After hearing counsel for the parties and perusing the record of the case as well as the impugned orders, this Court is of the opinion that the learned Court below has taken the evidence and particularly primia facie found that father of the accused is accepted the fact of the second marriage and has acted in a such manner so as to protect the earlier wife and her daughter. The action of the father as per learned Court below prima facie points out that the fact are sufficient to take cognizance because the stage of cognizance is a very preliminary stage of cognizance and the learned court is only required to see the prima facie case.
5. In light of the aforesaid observations, the misc. petition does not survive, hence, the same is dismissed. However, during trial, the petitioner shall be at liberty to raise all issues at appropriate stage..
(DR. PUSHPENDRA SINGH BHATI)J. sudheer