Delhi District Court
Tumpa Jana @ Pumpa Jana vs The State And Ors on 30 October, 2023
IN THE COURT OF SH. ABHISHEK GOYAL, ASJ-03,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CRL. REV. No. 243/2022
CNR No. DLCT01-007290-2022
IN THE MATTER OF:
SMT. TUMPA JANA @ PUMPA JANA
W/o. SH. SWAPAN JANA
R/o. 3639, GALI No. 13,
REHAGARPURA, KAROL BAGH, NEW DELHI
PRESENTLY AT:
162, LALA NA KHANCHA,
PATASHA POLE,
GANDHI ROAD KHADIA,
AHMEDABAD, GUJARAT
... PETITIONER/REVISIONIST
VERSUS
1. THE STATE
GOVT. OF NCT OF DELHI
2. SWAPAN JANA
R/o. 3639, GALI No. 13,
REHAGARPURA, KAROL BAGH,
NEW DELHI
3. PRIYANKA JANA @ PRIYANKA BERA
W/o. SH. SWAPAN JANA,
R/o. 3639, GALI No. 13,
REHAGARPURA, KAROL BAGH,
NEW DELHI
... RESPONDENTS
Date of Institution : 04.05.2022
Date when judgment was reserved : 20.10.2023
Date when judgment is pronounced : 30.10.2023
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2023.10.31
15:57:26 +0530
Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 1 of 26
JUDGMENT
1. The present revision petition has been preferred by the Petitioner/Revisionist against the order dated 16.02.2022, passed by the learned MM-01, Central, Tis Hazari Court, Delhi in CIS No. 5761/19, bearing; 'Tumpa Jana @ Pumpa Jana v. Swapan Jana & Anr.' (hereinafter referred to as the 'impugned order'), whereby the Ld. Trial Court dismissed the Petitioner's/Revisionist's complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C./Code").
2.1. Succinctly, as per the Revisionist, she is the legally wedded wife of Respondent No. 2, having got married to Respondent No. 2 on 30.01.2005 at West Mahdipur, Kolkata, in accordance with Hindu religion and as per Bengali customs. Thereafter, the Revisionist joined Respondent No. 2 at her matrimonial home at Delhi, however, after some time, Respondent No. 2 started demanding money from the Revisionist for buying a house. Consequently, the Petitioner/Revisionist, through her savings and stridhan as well as from the help of her brother, paid the amount to Respondent No. 2 to buy a property/house bearing; Municipal Ward No. 3639, Ward 16, Khasra No. 1931, Gali No. 13, Basti Reghar, Regharpura, Karol Bagh, admeasuring 25 sq. yds. After some time, Respondent No. 3, the niece of Respondent No. 2, came and started living with the Revisionist and Respondent No. 2 in the Revisionist's matrimonial home. As per the Revisionist, Respondent No. 2 developed illegitimate relationship with Respondent No. 3 (niece of the Respondent No. 2). Further, it is averred by the Revisionist Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2023.10.31 15:57:40 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 2 of 26 that Respondent No. 3, while on one hand, started interfering in the matrimonial relationship of the Revisionist and Respondent No. 2, on the other hand, Respondent No. 3 is stated to have started getting close to Respondent No. 2. It is further contended by the Revisionist that when she inquired about the aforesaid fact from Respondent No. 2, he/Respondent No. 2 lied to the Revisionist that he and Respondent No. 3 were only friends. Subsequently, Respondent No. 2 is stated to have forced the Revisionist to leave her matrimonial home and for a period of more than almost 10 (ten) years, the Revisionist was constrained to live at her paternal home. At the same time, as per the Revisionist, Respondent No. 2 neglected not only the Revisionist and their children, rather, got married to Respondent No. 3 and is averred to have been living with her/Respondent No. 3 in the Revisionist's matrimonial home. Consequent to Respondent No. 2's dereliction of duty(ies) and gross neglect towards the Revisionist and their children, the Revisionist is contended to be in a state of grave mental distress and agony, besides being left completely dependent upon her brothers for her sustenance, who are the sole bread earners in their respective families. 2.2. Further, as per the Revisionist, on 16.04.2019 when the Revisionist demanded an entry into her matrimonial home, bearing; Municipal Ward No. 3639, Ward 16, Khasra No. 1931, Gali No. 13, Basti Reghar, Regharpura, Karol Bagh, admeasuring 25 sq. yds., Respondent No. 2 and Respondent No. 3 started abusing the Revisionist with filthy language and assaulted her. At the same time, Respondent No. 2 gave a punch/blow on the chest of the Revisionist, while Respondent No. 3 kicked Revisionist's stomach and forcefully dragged her out of the said house, Digitally signed by Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 3 of 26 ABHISHEK ABHISHEK GOYAL GOYAL Date:
2023.10.31 15:57:52 +0530 threatening her by showing a kitchen knife and by uttering/shouting, "tujhe jaan se maardongi agar tune iss ghar ki taraf dekha toh aur ab main Swapan ki biwi hun tu nahi", while abusing the Revisionist in the process. The Revisionist subsequently made a call to PCR as well as lodged a formal complaint against Respondent Nos. 2 and 3. However, as per the Revisionist, the police refused to entertain the said complaint, under the premise that the dispute between the Revisionist and the Respondents was civil in nature/a civil dispute. Further, as per the Revisionist, since Respondent Nos. 2 and 3 did not grant her/the Revisionist access to her matrimonial home, she filed the aforestated complaint in terms of the provisions under Section 200 Cr.P.C. before the Ld. MM-01, Central, Tis Hazari Court, Delhi. Pertinently, during the course of proceedings before the Ld. MM, the Revisionist tendered her evidence (as CW-1) as well as produced Sh. Taraknath Gundhar Ghorai, Revisionist's brother as CW-2 during the pre-summoning evidence stage.
Simultaneously, the Revisionist produced, marked and exhibited certain documents to establish the factum of second marriage between Respondent Nos. 2 and 3. However, as aforementioned, the Ld. MM vide impugned order, dismissed Revisionist's complaint, leading to the filing of the present revision petition.
3. At this stage, it is pertinent to note that from a perusal of the case record(s) in the instant case, it has been observed by this Court that notice of the present revision petition was issued to the Respondents by the Ld. Predecessor of this Court on 04.05.2022, whereupon appearance was entered on behalf of Respondent No. 2. However, since Respondent No. 3 remained unserved, fresh notice(s) were issued by the Ld. Digitally signed by Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 4 of 26 ABHISHEK ABHISHEK GOYAL GOYAL Date:
2023.10.31 15:58:02 +0530 Predecessor Judge on 02.11.2022 and 07.12.2022. Subsequently, on 20.02.2023, considering that the process issued for service upon Respondent No. 3 was received back unserved, the said respondent was permitted to be served by the Ld. Predecessor Judge through publication in local newspaper, Veer Arjun, in Delhi as well as in 'The Hindu, West Bengal Edition' in West Bengal. Consequently, on 10.05.2023, the Ld. Predecessor Judge, considered that the copies of newspaper(s) publication, pursuant to the order of substituted service of Respondent No. 3 were filed by the Revisionist before the Court, Respondent No. 3 was deemed to be duly served. Markedly, ever since the initiation of the present proceedings and following even the aforesaid newspaper publication, no appearance was entered on behalf of Respondent No. 3 before the Ld. Predecessor Judge or even before this Court, even up to the stage of final arguments in the instant case. Nevertheless, it is further apposite to note here that apart from Respondent No. 2's appearance physically as well as through his counsel, this Court has been assisted in the arguments/present proceedings by the Ld. Amicus Curiae, appointed by the Ld. Predecessor Judge vide order dated 14.08.2023.
4.1. Learned Counsel for the Revisionist outrightly submitted that the impugned order is bad in law and facts of the case, liable to be set aside in limine. In this regard, Ld. Counsel further submitted that the impugned order is premised on mere conjectures and surmises, without appreciation of true and correct factual position, as well as without proper application of law/judicial mind by the learned Trial Court. Ld. Counsel further submitted that the learned Trial Court committed material Digitally signed by ABHISHEK ABHISHEK GOYAL Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 5 of 26 GOYAL Date:
2023.10.31 15:58:20 +0530 irregularity/illegality while dismissing the complaint of the Revisionist, making the impugned order liable to be set aside and quashed. Further, as per the Ld. Counsel for the Revisionist, learned Trial Court failed to consider the fact that Respondent No. 2 himself admitted that he got married with Respondent No. 3 as well as further failed to further appreciate that the Revisionist had duly proved her case, basis the documents and pleadings placed on record. In this regard, Ld. Counsel further submitted that the Revisionist, in order to prove the marriage between Respondent Nos. 2 and 3, placed on record; Voter ID and Aadhar of Respondent No. 3, in which Respondent No. 3 has been declared to be the wife of Respondent No. 2. Further, the factum of relationship of husband and wife between Respondent No. 2 and Respondent No. 3 has been admitted in various documents, which as per the Ld. Counsel for the Revisionist, the learned Trial Court failed to consider at the time of passing of the impugned order.
4.2. Learned counsel for the Revisionist further submitted that the learned Trial Court failed to consider that the Revisionist is a victim in the hands of Respondent Nos. 2 and 3 and the sole reason stated under the impugned order, while dismissing the Revisionist's complaint was that the date, month and year of the marriage of Respondent Nos. 2 and 3 has not been specified under the said complaint is not based on appreciation of the correct factual as well as legal position by the learned Trial Court. In this regard, Ld. Counsel further submitted that the said finding of the Ld. Trial Court is contrary to law, especially when the learned Trial Court even failed to consider that Respondent No. 3 under various public documents as well as Digitally signed by ABHISHEK ABHISHEK GOYAL Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 6 of 26 GOYAL Date:
2023.10.31 15:58:44 +0530 on affidavit(s) has affirmed/represented herself to be the wife of Respondent No. 2. Ld. Counsel for the Revisionist further submitted that the Ld. Trial Court even failed to consider the fact that under the Sale Deed, placed on record by the Revisionist, Respondent No. 3 has represented herself as the wife of Respondent No. 2 and further that even at the time of registration of the said deed, Respondent No. 2 signed/placed his signature thereupon as one of the witnesses. Accordingly, Ld. Counsel for the Revisionist reiterated that the learned Trial Court, while passing the impugned order, failed to appreciate the facts and circumstances of the instant case in correct perspective; material placed on record; reliable, trustworthy and overwhelming evidence of the Revisionist; principles of law; etc., making the impugned order bad in law and liable to be set aside by this Court. Accordingly, it was submitted that the present revision be allowed, and the impugned order be set aside. In support of the said contentions, reliance was placed upon the decisions in; K. Neelaveni v. State, Represented by Insp. of Police & Ors., SLP(Crl.) No. 3562/2009, dated 22.03.2010 (SC) and Ushaben v. Kishorbhai Chunilal Talpada & Ors., Criminal Appeal No. 562/2012, dated 23.03.2012 (SC).
5.1. Per contra, learned Counsel for Respondent No. 2 submitted that the impugned order was passed by the learned Trial Court after duly appreciating the facts and the circumstances of the case, without there being any error patent or otherwise, deserving any indulgence from this Court. Without prejudice to the same, Ld. Counsel further submitted that the Revisionist got married with Respondent No. 2 on 30.01.2005 at West Bengal, however, soon after her marriage with Respondent Digitally signed by ABHISHEK ABHISHEK GOYAL Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 7 of 26 Date:
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No. 2, the Revisionist started coercing Respondent No. 2 for demand of jewellery and luxurious items, leading eventually to her abandonment of Respondent No. 2 when the said respondent failed to meet the demands of the Revisionist. Further, as per the Ld. Counsel for Respondent No. 2, not only did the Revisionist leave her matrimonial home of her own free will, rather, concocted a false story of second marriage of Respondent No. 2. Even otherwise, it was submitted by the Ld. Counsel that the Revisionist has been unable to prove the factum of Respondent No. 2's valid second marriage with Respondent No. 3, as mandated under the provisions of Section 494 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC/Code") as Section 5 of the Hindu Marriage Act, 1955 ("HMA" for short). 5.2. Learned Counsel for the Respondent No. 2 further submitted that there is nothing on record to establish the fact of marriage between Respondent Nos. 2 and 3, except for the Voters Id card and Sale Deed, which even otherwise, it was submitted, would not constitute sufficient proof of valid second marriage of Respondent No. 2. Ld. Counsel further submitted that in order to bring the alleged offence within the ambit of provisions under Section 494 IPC, the Revisionist was required to prove that both the first and second marriages of Respondent No. 2 were performed as per relevant ceremonies and that mere admission, tacit or otherwise, on the part of the respondents/Respondent No. 2 would not be sufficient to rope in the Respondents/Respondent Nos. 2 and 3 in the commission of any offence. In this regard, Ld. Counsel further averred that a mere perusal of the provisions under Section 494 IPC would clarify that in case either of the two marriages, first or second, is proved to be void, person cannot be Digitally signed by ABHISHEK ABHISHEK GOYAL Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 8 of 26 GOYAL Date:
2023.10.31 15:59:14 +0530 held for guilty of commission of offence under the said provision(s), which burden the Revisionist has failed to prove in the instant case.
5.3. Learned counsel for Respondent No. 2 further submitted that even the testimony/statement of CW-2 Sh.
Taraknath Gundhar Ghorai, Revisionist's brother cannot be considered as the contents of the said statement are in a nature of hearsay and that no statement from the author and/or actual witnesses of alleged second marriage of Respondent No. 2 is forthcoming in the instant case. Ld. Counsel further reiterated that to support the charges/allegation of bigamy, direct evidence is required to be established in so far as they relate to the performance of essential marriage ceremonies and that mere documentary proof, being the documents placed on record by the Revisionist in the instant case, would not be sufficient to bring home charges under Section 494 IPC against the respondent. Lastly, it was submitted by the Ld. Counsel that even the fact of birth of a child would not do away with the proof of performance of marriage ceremonies/valid solemnization of marriage to establish the offence of bigamy. In support of the said contentions, Ld. Counsel placed reliance upon the decisions in; Dr. Pabitra Kumar Das v. State of Assam & Anr., 2008 (Supp.) GLT 589; Gopal Lal v. State of Rajasthan, AIR 1979 SC 713; Kanwal Ram & Ors. v. The Himachal Pradesh Admn., 1965 SCC OnLine SC 42; Mangal Deb Barma v. State of Tripura, (2010) 1 GLR 20.
6. Learned Amicus Curiae submitted that from the documents and material placed on record, the offence alleged by the Revisionist in the instant case does not stand established. As Digitally signed by ABHISHEK Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 9 of 26 ABHISHEK GOYAL GOYAL Date:
2023.10.31 15:59:23 +0530 per the Ld. Amicus Curiae, even the primary/basic ingredients of offence under Section 494 IPC are not established in the instant case, in the absence of proof of time, place and particulars of witnesses of the alleged second marriage between Respondent Nos. 2 and 3. Accordingly, Ld. Amicus Curiae submitted that no fault or irregularity exists in the impugned order, deserving any interference from this Court. Further, in support of the said contentions, reliance was placed upon the decisions in Bhaurao Shankar Lokhande & Anr v. State of Maharashtra, AIR 1965 SC 1564; Kanwal Ram v. Himachal Pradesh Admn. (Supra.); Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, (1971) 1 SCC 864; Lingari Obulamma v. L. Venkata Reddy & Ors., (1979) 3 SCC 80; Gopal Lal v. State of Rajasthan, (1979) 2 SCC 170; Dhanalakshmi v. R. Prasanna Kumar & Ors., 1990 Supp. SCC 686; Santi Deb Berma v. Kanchan Prava Devi, 1991 Supp. (2) SCC 616; Mohinder Singh v. Gulwant Singh & Ors., (1992) 2 SCC 213; Chand Dhawan v. Jawahar Lal & Ors., (1992) 3 SCC 317; K. Neelaveni v. State (Supra.); Laxmi Devi v. Satya Narayan & Ors., (1994) 5 SCC 545; Sarla Mudgal v.
Union of India & Ors., (1995) 3 SCC 635; Lily Thomas & Ors. v. Union of India, (2000) 6 SCC 224; P. Satyanarayana & Anr. v. P. Mallaiah, (1996) 6 SCC 122; Krishna Gopal Divedi v. Prabha Divedi, (2002) 10 SCC 216; Kunti Devi v. Som Raj & Ors., (2004) 11 SCC 278; Pashaura Singh v. State of Punjab, (2010) 11 SCC 749; Ravinder Kaur v. Anil Kumar, (2015) 8 SCC 286; S. Nagalingam v. Sivagami, (2001) 7 SCC 487; Purandar Sahoo v. Golapi Sahoo, (2007) 15 SCC 696; Kanan v. Selvamuthukani, (2012) 5 SCC 570; Clarence Pais v. Union of India & Ors., (2018) 17 SCC 734; M. Saravana Porselvi v. R. Digitally signed by ABHISHEK ABHISHEK Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 10 of 26 GOYAL GOYAL Date:
2023.10.31 15:59:48 +0530 Chandrashekhar, (2008) 11 SCC 520 and Manish Das v. State of U.P. & Anr., (2006) 6 SCC 536.
7. The arguments of Ld. Counsel for Revisionist, Ld. Counsel for Respondent Nos. 1 and 2 as well as that of the Ld. Amicus Curiae have been heard as well as case record(s) and judgments cited, thoroughly perused.
8. Before delving into the factual matrix of the present case and cogitating upon the arguments raised on behalf of the parties, it would be relevant to outrightly reproduce the provisions under Section 494 IPC, which read as under;
"494. Marrying again during lifetime of husband or wife-Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception-This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."
(Emphasis supplied)
9. Pertinently, Chapter XX of IPC deals with offences relating to marriage, which inter alia encapsulates the offence of bigamy under Section 494 of Code, ascribing criminal liability 1 on a person (whoever); "(1) having a husband or wife living; (2) Digitally signed 1 Sarla Mudgal v. Union of India & Ors., (1995) 3 SCC 635 by ABHISHEK ABHISHEK GOYAL Date:
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Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 11 of 26 marries in any case; (3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife." Relevant to outrightly observe that it is a settled law 2 that in order to attract the provisions under Section 494 IPC, both the marriages of an accused must be proved to be valid, in so far as all the necessary ceremonies required by the personal law governing the parties must have been duly performed. However, in case either of the said marriages is not 'valid one', according to the law/customs applicable to the parties, no question of its being void by reason of it taking place during the life of the husband or wife of the person marrying arises. Clearly3, the word, 'marries', used under Section 494 IPC means that a person/whoever must have married by some form of marriage known or recognized by law, as applicable to such parties and that mere display or show of some form of ceremony(ies) of marriage, without there being actual obedience of applicable marital rituals and ceremonies is not sufficient to sustain the accusation of bigamy under Section 494 IPC. It is an equally settled law4 that a mere fact of a man and a woman living as husband and wife, "does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife." In this regard, reliance is further placed upon the decision of the Hon'ble Supreme Court in Priya Bala Ghosh v. Suresh Chandra Ghosh (Supra.), wherein the Hon'ble Court while explicating the principles governing the 2 A. Subash Babu v. State of A.P., (2011) 7 SCC 616 Digitally 3 Dr. Pabitra Kumar Das v. State of Assam & Anr., 2008 (Supp.) GLT 589 signed by ABHISHEK ABHISHEK GOYAL 4 Bhaurao Shankar Lokhande & Anr v. State of Maharashtra, AIR 1965 SC 1564 GOYAL Date:
2023.10.31 16:00:11 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 12 of 26 applicability of the provisions under Section 494 IPC, inter alia, observed as under;
"16. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties, it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494 IPC. Again in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form.
17. ...The effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage held been duly performed in accordance with the essential religious rites applicable to the form of the marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties."
(Emphasis supplied)
10. At the same time, this Court is cognizant 5 of the fact that criminal liability under the aforesaid provision(s) would not accrue simply upon mere admission by an accused. On the contrary, prosecution is required to prove that the marriage was performed in a regular manner, after all the essential ceremonies for marriage were duly undertaken/executed. In this regard, reliance is placed upon the decision of the Hon'ble Supreme Court in Lily Thomas v. Union of India, (Supra.), wherein the Hon'ble Court noted as under;
" 63. ... the person seeking conviction of the accused for a commission of offence under Section 494 is under a legal obligation to prove all the ingredients of the offence charged and conviction cannot be based upon mere admission made outside the court. To attract the provisions of Section 494 IPC the second marriage has to be proved besides proving the previous marriage. Such marriage is further required to be proved to have been performed Digitally signed 5 P. Satyanarayana & Anr. v. P. Mallaiah, (1996) 6 SCC 122 ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2023.10.31 16:00:23 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 13 of 26 or celebrated with proper ceremonies. This Court in Kanwal Ram v. H.P. Admn. [AIR 1966 SC 614 :
(1966) 1 SCR 539 : 1966 Cri LJ 472] held that in a bigamy case the second marriage as a fact, that is to say the essential ceremonies constituting it, must be proved. Admission of marriage by the accused by itself was not sufficient for the purpose of holding him guilty even for adultery or for bigamy. In Bhaurao Shankar Lokhande v. State of Maharashtra [AIR 1965 SC 1564 : (1965) 2 SCR 837] this Court held that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed."
(Emphasis supplied)
11. Ergo, in light of the afore-noted principles governing the invocation and applicability of the provisions under Section 494 IPC, the question which falls for consideration before this Court in the instant case is, 'whether a complaint under Section 200 Cr.P.C., initiated at the behest of the victim/complainant can be dismissed solely for the reason that the same fails to disclose the date, time, names of witnesses attending second marriage, etc.?', as has been done by the learned Trial Court in the instant case vide the impugned order. Undoubtedly, in order to answer this question, it is imperative for this Court to further iterate the principles governing cognizance of offence(s), which are premised on determination by court of prima facie reasons to proceed with a case and for issuing the process, in contrast with, ascertainment of sufficient ground(s) for the purpose of conviction. In this regard, reliance is placed upon the decision of the Hon'ble Supreme Court in Shivjee Singh v. Nagendra Tiwary, (2010) 7 SCC 578, wherein the Hon'ble Court observed as under;
"18. The expression "sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
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Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 14 of 26 person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI CrPC finds adequate support from the judgments of this Court in Ramgopal Ganpatrai Ruia v. State of Bombay [AIR 1958 SC 97 : 1958 Cri LJ 244 : 1958 SCR 618] , Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar [AIR 1960 SC 1113 : 1960 Cri LJ 1499 : (1961) 1 SCR 1] , Chandra Deo Singh v. Prokash ChandraBose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 : (1964) 1 SCR 639] , Nirmaljit Singh Hoon v. State of W.B. [(1973) 3 SCC 753 : 1973 SCC (Cri) 521] , Kewal Krishan v. Suraj Bhan [1980 Supp SCC 499 : 1981 SCC (Cri) 438] , Mohinder Singh v. Gulwant Singh [(1992) 2 SCC 213 : 1992 SCC (Cri) 361] and Chief Enforcement Officer v. Videocon International Ltd. [(2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471]"
(Emphasis supplied)
12. Similarly, the Hon'ble Supreme Court in Mohinder Singh v. Gulwant Singh (Supra.), in the aforesaid context, noted as under;
"11. ... 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 ABHISHEK Digitally signed by ABHISHEK GOYAL GOYAL Date:
2023.10.31 16:00:42 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 15 of 26 detailed enquiry is called for during the course of such enquiry. Vide Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker [(1961) 1 SCR 1 : AIR 1960 SC 1113 : 1960 Cri LJ 1499] and Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [1962 Supp 2 SCR 297 : AIR 1962 SC 876 : (1962) 1 Cri LJ 770] ."
(Emphasis supplied)
13. Consequently, in conspectus of the above, this Court conscientiously echoes that at the stage of cognizance of offence, it is not expected of the court(s) to carry out a detailed analysis of the allegations made in the complaint, lest the same would convert the stage of cognizance into a full dressed trial, which is clearly impermissible under law. Further, it is apposite to reiterate at the said stage, court(s) are not required to probe deeply into material placed on record to establish their sufficiency for conviction, rather, to merely consider whether or not prima facie case stands established to proceed with the trial. However, such a determination is expected to be carried out by Court, being further wary of the settled principle6 of law that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind. Clearly, the stage of cognizance demands, conscious evaluation of material placed on record before the court/magistrate as well as to ensure that process/summons/warrants are not issued for mere wanting of the complainant. Reliance in this regard is placed upon the decision of the Hon'ble Supreme Court in Birla Corporation Ltd. v. Adventz Investments & Holdings Ltd. & Ors., (2019) 16 SCC 610, wherein the Hon'ble Court while expounding the Digitally signed by ABHISHEK 6 Pepsi Foods Ltd. &Anr. v. Special Judicial Magistrate & Ors., (1998) 5 SCC 749 ABHISHEK GOYAL GOYAL Date:
2023.10.31 16:00:53 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 16 of 26 expectation from Court at the stage of cognizance and issuance of process, inter alia, observed as under;
"35. To be summoned/to appear before the Criminal Court as an accused is a serious matter affecting one's dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused. In Punjab National Bank v. Surendra Prasad Sinha, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment."
(Emphasis supplied)
14. Accordingly, mindful of the principles hereinunder observed, this Court deems it appropriate to consider the facts and circumstances of the present case, in light of the arguments raised on behalf of respective parties. Relevantly, in this regard, this Court deems it appropriate to reproduce the relevant extract of Revisionist's complaint before the learned Trial Court at this stage, as under;
"6. That subsequently the accused no. 1 had forced complaint out of her matrimonial home and, now the complainant is living at her paternal home since last 7 years, whereas the accused no. 1 has neglected the complainant and his children, and has married Priyanka Bera and living with her in the complainant's matrimonial home.
*** *** ***
8. That on 16.04.2019, when the complainant came and demanded entry into the property bearing Municipal No. 3639, ward no. XVI, Khasra No. 1931 Gali No. 13 Basti Rehgar, Rehgarpura, Karol Bagh admeasuring 25 Sq. yds., the accused no. 1 and his second wife namely Smt. Priyanka Jana (accused No. 2) started abusing her with filthy languages and assaulted her and accused no. 2 namely Smt. Priyanka Jena gave a punch on the chest of the complainant and accused no. 1 namely Swapan Jena Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2023.10.31 16:01:04 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 17 of 26 kicked her in stomach and forcefully dragged her out of the house, and threatened her showing kitchen knife and by saying "tujhe jaan se maardongi agar tune iss ghar ki taraf dekha toh aur ab mein Swapan ki biwi hun u nahi" and started abusing her. That the complainant subsequently called the PCR by dialing 100 number and made a formal complaint against the accused no. 1 and accused no. 2 his second wife, the police refused to entertain the complaint and said that this being a civil dispute, you should seek the remedy before the appropriate civil court.
9. That after further inquiring about the relationship of the accused no. 1 and the Priyanka Jana accused no. 2, complainant came to know that the accused no. 1 had married the accused no. 2 and is now known as Smt. Priyanka Jana wife of Swapan Jana and is now living in the matrimonial house of the complainant along with the accused no. 1."
(Emphasis supplied)
15. Notably, averments similar to that noted above were made by the Revisionist in her pre-summoning evidence before the Ld. Trial Court, besides, presenting inter-alia copy(ies) of Voter ID card and Aadhar Card of Respondent No. 3, Sale Deed executed by Respondent No. 3 and signed as witness by Respondent No. 2, school progress report of Revisionist's elder son, wherein under all the said documents, Respondent No. 3 has proclaimed herself to be the wife of Respondent No. 2. Consequently, in light of the said averments and documents, it is the case of the Revisionist that the learned Trial Court erred in dismissing the Revisionist's complaint vide impugned order, without appreciating the said documents/material placed on record. Further, as aforenoted, Ld. Counsel for the Revisionist has vehemently contended that even Respondent Nos. 2's and 3's admission under various documents was not considered by the learned Trial Court, while dismissing the Revisionist's complaint. However, the said contentions do not find favour with this Court Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2023.10.31 16:01:13 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 18 of 26 especially, as afore-noted that to invoke the provisions under Section 494 IPC even at the stage of cognizance, it is incumbent upon the complainant to prima facie disclose the basic ingredients of the said offence in its complaint, which is not the case here. Needless to reiterate that cognizance and summons of an accused in a criminal matter is a serious matter and that criminal law cannot be set into motion as a matter of course or on a mere asking of the complainant, without the complaint even disclosing prima facie ingredients of the offence alleged against such accused.
16. Apposite at this stage, to refer to the decision of the Hon'ble Madras High Court in Dhananchezhian & Anr. v. The State of Tamil Nadu, rep. by Sub Inspector of Police & Anr., Crl.O.P. No. 8519/2011 and M.P. No.1/2011, dated 10.04.2017, wherein the Hon'ble High Court, whilst confronted with a similar conundrum noted as under;
"13. In the present case on hand, a perusal of the complaint disclose that no such material particulars like date, time and witnesses participated in the second marriage are made in the complaint, so as to attract an offence under Section 494 of I.P.C. It is alleged that the marriage between the petitioners remained solemnized on 28.05.2009. Except the above said vague allegation no other essential arguments are traceable to attract the offence under Section 494 of I.P.C.
14. In this regard, it would be relevant to look into the following decisions of this Court envisaging that even a complaint under Section 200 of Cr.P.C. should encompass definite solid details as to the second marriage:
(i) In the matter of B.Sekar and 2 others Vs S.Latha reported in 2009 (3) CTC 681 wherein this Court had an occasion to deal an identical situation holding as follows, vide para 11 "11....... Neither in the complaint nor in the sworn statement of the respondent the details of Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2023.10.31 16:01:22 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 19 of 26 the form of alleged second marriage undergone by the petitioner with the third petitioner, name of witnesses who are alleged to have witnessed the second marriage and the essential ceremonies which are necessary for performing a valid marriage have been mentioned.
12. In the absence of such vital allegations in the complaint and in sworn statement, the learned magistrate ought not to have taken the complaint on file as no offence has been made out U/s 494 of IPC"
(ii) Prasanna Kumar vs Dhanalaxmi And Ors.
reported in 1989 Crl.L.J. 1829, wherein in para No. 7, it is laid as under:
"7. ...It is also to be pointed out that in the complaint, which had been given long after, the details of the place where exactly the marriage took place and on what date the marriage took place have not been mentioned. Apart from mentioning that the marriage was performed secretly in the presence of the other accused and some people close to the accused there is no indication whatsoever as to who had witnessed the occurrence. No doubt learned counsel for the first respondent complainant submitted that one Pakirisami and another Ramkrishnan witnesses 1 and 2 respectively are the witnesses who witnessed the marriage. Even the said fact of their witnessing the marriage had not been mentioned in the complaint. There is also no mention in the complaint in what manner the marriage took place. Admittedly, the parties are Hindus. While so the necessary ingredients of the offence under Section 494 of I.P.C., have to be mentioned and it is to be pointed out that there should be an allegation that the accused gone through a form of marriage recognized by law and the second respondent whom the first accused is alleged to have married and the parents of the second respondent had knowledge of such marriage of the petitioner with the complainant. It is idle to contend that having regard to the fact that A-1 is already married to the complainant the marriage naturally was performed secretly without mentioning in what form the marriage took place. In a Bigamy case, the second marriage as a fact, has to be established, and Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2023.10.31 16:01:42 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 20 of 26 the admission of the marriage by the accused is not evidence of it for the purpose of proving marriage as laid down in the case reported in Kanwalram v. Himachal Pradesh Administration. Thus, taking into consideration the complaint filed by the first respondent it has to be stated that the allegations made in the complaint with regard to the second marriage by the first accused (the petitioner herein) with the second accused (the second respondent herein) taken along with the sworn statement did not disclose the essential ingredients of the offence under Section 494 of I.P.C. and on the allegations made in the complaint no prudent person could reach a conclusion that there is sufficient ground for proceeding against the accused. It has been laid down by the Supreme Court in the case reported in Sharda Prasad v. State of Bihar, that it is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of Cr.P.C. to quash the order passed by the Magistrate taking cognizance of the offence."
15.Admittedly in the Statements made under Section 161 of Cr.P.C. in the case on hand, there is no say as to form of marriage alleged to have taken place, the details of the time and the name of the witnesses whose presence the second marriage of the petitioners were solemnized. It is noteworthy that in such circumstances in the absence of vital allegation, even a Private Complaint would remain rejected, in the light of above settled legal preposition. On the other hand it is further seen that on 28.05.2009, on the alleged date of marriage, there was not even a petition to set aside the divorce decree dated 24.11.2008."
(Emphasis supplied)
17. Analogously7, the Hon'ble Madras High Court in Prem Sankar Narayanan v. Lalitha Narayanan, Crl.O.P. No. Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2023.10.31 16:01:53 +0530 7 Similar observations were also made by the Hon'ble High Court of Allahabad in Smt. Munni Devi v. State of U.P. & Ors., Crl. Misc. W.P. No. 604/2003, dated 18.11.2015; 2015:AHC:166834 and by the Hon'ble High Court of Calcutta in Binoy Kumar Gupta v. Leela Gupta & Anr., 2007 (4) CHN 491.
Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 21 of 26 15218/2010 and M.P. No. 1/2010, dated 24.10.2017, observed as under;
"7. Therefore, it is obvious that to attract Section 494 of IPC, the form of marriage alleged to have taken place, the details of the time and the name of the witnesses whose presence the second marriage have taken place must be pleaded in the complaint, whereas in the absence of vital allegations in the complaint and in the sworn statement, such complaint is not supposed to be taken on file. In the present case on hand, a perusal of the complaint disclose that no such material particulars like date, time and witnesses participated in the second marriage are made in the complaint, so as to attract an offence under Section 494 of IPC. It is alleged that the respondent came to know on 11.01.2008 or at the relevant point of time, through the voters list, that the petitioner married his concubine Mrs. Sathiyakala. Again it is stated that the petitioner lived with Mrs. Sathiyakala for the past so many years in addition that the petitioner was habitual in coming to the respondent's home in all days at day time. Except the above said vague allegation no other essential arguments are traceable to attract the offence under Section 494 of IPC.
8. It is noteworthy that the respondent herein solely relies upon a voter list to establish that the petitioner herein got second marriage with one Sathyakala. Rebutting the contention of the respondent that in the absence of sufficient evidence and corroborating documents to substantiate a claim on relationship, a Voter List can be never relied upon, the petitioner relies on the decision of the Hon'ble Apex Court made in Crl.A.No.1572 of 2008 dated 03.10.2008, in the case of Babloo Pasi v. State of Jharkhand and another, wherein it was held that mere production of a copy of voter list, through a public document, in terms of Section 35 of Indian Evidence Act, cannot be taken into account, it should be proved by sufficient evidence and corroborating documents.
9. It is needless to say that when the complainant and accused lived together as husband and wife, the question of bigamy does not arise, unless it is proved by evidence that there exist long co-habitation with the second wife and the form of marriage with the second wife was proved by the material evidence like the name of witness at the time of alleged second Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2023.10.31 16:02:14 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 22 of 26 marriage, time and date of solemnization of such second marriage."
(Emphasis supplied)
18. Clearly, in conspectus of the above, it is observed that mere vague allegations or admission by the proposed accused regarding the second marriage cannot be considered to be sufficient enough evidence, even to prima facie invoke the provisions under Section 494 IPC. On the contrary, from a conjoint reading of the aforesaid dictates it may be reasonably deduced that there must be clear averments under the complainant regarding the solemnization of the second marriage of the accused and that of performance of essential ceremonies of the marriage according to the rites and customs of the spouses, corroborated with the particulars of witnesses, date and time of the said event. Even presuming that a complainant may not be aware of the exact date, time and place when the second marriage of an accused may have happened, it is nevertheless obligatory on a complainant to disclose the particulars of the witnesses who are alleged / would have witnessed the second marriage. Clearly, bereft of such particulars if the criminal machinery is set into motion on mere vague allegations, the same may patently lead to gross injustice to accused, as being summoned on mere asking of the complainant. Needless to further accentuate at this stage, mere production of documents such as Voters ID or Aadhar Card or any other document, wherein the relationship of second marriage may be recorded, would not be sufficient to set into motion criminal machinery at such a stage for as hereinunder noted that criminal liability under Section 494 IPC cannot ensue upon mere admission of persons accused. On the contrary, as Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2023.10.31 16:02:23 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 23 of 26 aforenoted, there has to be a positive declaration under the complaint inter-alia regarding the performance of essential ceremonies of marriage/second marriage, the details of the time and the name of the witnesses whose presence the second marriage have taken place, etc., to invoke criminal liability under Section 494 IPC.
19. Evidently, in light of the aforesaid, it is observed that the Revisionist neither in her complaint nor in her statement recorded at pre-summoning stage, specified the date, time and place of marriage or regarding the performance of essential marriage ceremonies between Respondent Nos. 2 and 3. Further, though, the Revisionist under para 9 of her complaint before the learned Trial Court has inter-alia contended regarding her awareness of the alleged relationship between Respondent No. 2 and Respondent No. 3, "after further inquiring about the relationship of the accused no. 1 and the Priyanka Jana", however, has failed to disclose the source of her such information or even produce any witness other than herself and her brother in support of her allegations. In fact, even the names/particulars of the witnesses who allegedly would have/had witnessed the marriage between Respondent No. 2 and Respondent No. 3 are not forthcoming from the complaint of the Revision. On the contrary, the Revisionist has merely relied upon the Voter ID card and Aadhar Card of Respondent No. 3, Sale Deed executed by Respondent No. 3 and signed as witness by Respondent No. 2, school progress report of Revisionist's elder son, wherein under all the said documents, Respondent No. 3 has proclaimed herself to be the wife of Respondent No. 2, and which, as aforementioned would not be sufficient to even prima facie Digitally signed by ABHISHEK ABHISHEK GOYAL Date: Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 24 of 26 GOYAL 2023.10.31 16:03:06 +0530 establish the offence under Section 494 IPC against the said Respondent(s). Ergo, it is quite incomprehensible as to the reasons why the Revisionist would not produce the 'best evidence' in support of her case at the pre-trial evidence before the learned Trial Court by disclosing and/or producing the source of her information regarding the alleged second marriage of Respondent No. 2 with Respondent No. 3. Accordingly, under such circumstances, this Court finds it difficult to concede that there are sufficient and/or any ground(s) for proceeding further on the Revisionist's complaint. On the contrary, as per the opinion of this Court, the continuation of the criminal proceeding in the instant case would be nothing more than a mere abuse of the process of law. At this stage it is further relevant to note here that, though, this Court holds highest regard for the decisions relied upon by Ld. Counsel for the Revisionist, however, none of the said decisions would come to the aid of the Revisionist in the manner as sought to be relied upon by the Ld. Counsel, as the facts and circumstances of the present case are clearly distinguishable.
20. Conclusively, in light of the aforesaid discussion, this court finds it difficult to concede/concur with the averments raised by the Ld. Counsel for the Revisionist in the present petition. Accordingly, this Court finds no grounds/reasons to interfere with the impugned order dated 16.02.2022, passed by the MM-01, Central, Tis Hazari Court, Delhi in CIS No. 5761/19, bearing; 'Tumpa Jana Vs. Swapan Jana & Anr.'. Consequently, the present revision petition is dismissed as devoid of merits.
21. Trial Court Record along with copy of this order be sent to the Ld. Trial Court concerned. ABHISHEK by Digitally signed ABHISHEK GOYAL GOYAL Date: 2023.10.31 16:03:21 +0530 Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 25 of 26
22. Revision file be consigned to record room after due compliance.Digitally signed by ABHISHEK
ABHISHEK GOYAL GOYAL Date:
2023.10.31 16:03:29 +0530 Announced in the open Court (Abhishek Goyal) on 30.10.2023. ASJ-03, Central District, Tis Hazari Courts, Delhi Crl. Rev. No. 243/2022 Smt. Tumpa Jana @ Pumpa Jana v. State & Ors. Page No. 26 of 26