Karnataka High Court
Sri K B Shivalingegowda vs Smt M C Sumithra @ Shobha on 21 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.2196/2017
BETWEEN:
SRI K.B. SHIVALINGEGOWDA
S/O LATE SRI BOREGOWDA
AGED ABOUT 53 YEARS
PRESENTLY RESIDING AT
ALATTI VILLAGE, ARAMBUR POST,
SULYA TALUK
DAKSHINA KANNADA - 574 239.
...PETITIONER
(BY SRI K.M. SOMASHEKARA, ADV. FOR
M/s. C.R. GOPALASWAMY & ASSTS., ADVS.)
AND:
SMT. M.C. SUMITHRA @ SHOBHA
W/O SRI K.B. SHIVALINGE GOWDA
AGED ABOUT 46 YEARS
R/AT MADANE VILLAGE
HIRISAVE HOBLI, CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 573 124.
... RESPONDENT
THIS CRL.P. IS FILED UNDER SECTION 482 CR.P.C.
PRAYING TO QUASH THE IMPUGNED ORDERS DATED
26.05.2012 PASSED BY THE CIVIL JUDGE (SR.DN.) AND
J.M.F.C., K.R.PET IN C.C.NO.181/2012 (PCR NO.36/2010) AND
ORDER DATED 16.12.2016 PASSED BY THE III ADDITIONAL
2
DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT
SRIRANGAPATNA) IN CRL.R.P.NO.5119/2014; CONSEQUENTLY
DISMISS THE PRIVATE COMPLAINT NO.36/2010 FILED BY THE
RESPONDENT.
THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard Sri Somashekara, learned counsel appearing on behalf of Sri C.R. Gopalaswamy for petitioner. Perused the records.
2. Petitioner is seeking for quashing of order dated 26.05.2012 passed by the Civil Judge (Sr.Dn.) and JMFC, K.R.Pet in C.C.No.181/2012 and order dated 16.12.2016 passed by the III Additional District and Sessions Judge, Mandya in Crl.R.P.No.5119/2014 and to dismiss the Private Complaint No.36/2010 filed by the respondent herein.
3. Respondent herein filed a private complaint under Section 200 Cr.P.C. alleging that respondent - accused No.1 is her legally wedded husband and during the subsistence of 3 her marriage with him, he has married accused No.2 and thus committed an offence punishable under Section 494 of IPC. Learned Magistrate has recorded sworn statement of complainant and after considering/examining the documents produced by the complainant has taken cognizance of the offence and issued summons to the accused by order dated 26.05.2012. Being aggrieved by the same, Revision Petition was filed in Crl.R.P.No.5119/2014 by both the accused, which came to be dismissed by Sessions Court by order dated 16.12.2016. Aggrieved by same, present petition is filed by accused No.1.
4. It is the contention of Sri Somashekara, learned counsel appearing for petitioner that allegation made in complaint is vague, lacks material particulars and as such trial Court in the absence of such allegation in the complaint, ought not to have taken cognizance of alleged offence and Revisional Court ought to have interfered with the order 4 passed by the Magistrate taking cognizance and erred in dismissing the revision petition. He has relied upon the judgment of the Hon'ble Apex Court in the case of Santi Deb Berma vs. Smt. Kanchan Prava Devi, reported in AIR 1991 SC 816.
5. Having heard the learned counsel appearing for petitioner and on perusal of case papers, the first and foremost aspect which requires to be noticed is that accused No.1 i.e., petitioner herein does not dispute the fact that he married respondent herein namely, the complainant on 10.05.1989. In the complaint filed by respondent under Section 200 Cr.P.C., she has specified and indicated that petitioner herein has married one Smt. Kavitha during subsistence of her marriage with petitioner herein. It is no doubt true the details of such marriage has not been furnished. It is for the complainant to establish during course of trial, marriage between the accused persons having 5 been solemnized and as such they are living together as husband and wife, so as to attract Section 494 of IPC. At the stage of cognizance being taken, this Court exercising extraordinary jurisdiction would not interfere to quash the complaint, particularly in the background of allegation made in the complaint indicating that there has been solemnization of marriage between accused Nos.1 and 2 during the subsistence of first marriage with the complainant. This Court would not examine the correctness or otherwise of allegations made in the complaint and it would in the domain of the learned Magistrate to take cognizance, if there is a cognizable offence made out, which according to complainant is that accused No.1 had married accused No.2. In that view of the matter, contention raised by Sri Somashekara cannot be accepted and stands rejected.
6. Insofar as judgment relied upon by the learned counsel would disclose that Apex Court while examining the 6 correctness and legality of the Appellate Court judgment has held that, performance of 'Saptapadi' is a prerequisite for Hindu Marriage and same had not been established by the complainant (first wife) and as such it came to be held in the absence of saptapadi having taken place, assertion by the first wife would not be sufficient to draw inference about evidence of marriage having taken place between accused therein and his alleged second wife. In the facts obtained in the said case, Hon'ble Apex Court has examined the evidence tendered by the parties to arrive at a conclusion as to whether there was a valid second marriage and held in the negative. However, in the instant case, petitioner - accused No.1 is admitting his marriage with the complainant. Thus, during trial complainant has to prove the allegation of petitioner - accused No.1 having married accused No.2. Trial is yet to take place. Hence, no inference can be drawn at this stage. As such judgment relied upon by the learned counsel 7 appearing for the petitioner would not come to his rescue in support of his prayer for quashing of the proceedings.
For the reasons abovestated, this Court is not inclined to entertain this petition. Hence, criminal petition is hereby dismissed.
I.A.No.1/2017 does not survive for consideration and stands disposed of accordingly.
SD/-
JUDGE ca