Telangana High Court
Chelluboina Veeram Shetty vs The State Of Telangana on 1 November, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HONOURABLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.2055 of 2019
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners-accused Nos.1 to 5 to quash C.C.No.348 of 2019 on the file of learned XXIV Additional Metropolitan Magistrate, Rachakonda at Hayathnagar, the cognizance of which was taken for the offences under Sections 494 and 506 of the Indian Penal Code.
2. The facts in brief as can be seen from record available before the Court are as under:
a) On 28.11.2018 at 4.00 PM the de-facto complainant -
respondent No.2 has lodged a complaint before Vanasthalipuram Police Station alleging that her marriage was performed with accused No.1 on 08.05.1977 at Dwaraka Thirumala, West Godavari District and that accused No.1 has concealed his first marriage and also about his taking divorce from his first wife. During their wedlock, the de-facto complainant was blessed with one son and one daughter and out of them their son expired on 06.05.2003 in suspicious manner. Accused No.1 took voluntary retirement from 2 N.G.Ranga Agricultural University. Accused No.1 used to harass the de-facto complainant physically and mentally sicne the date of marriage and in the year 1996 accused No.1 applied for divorce vide O.P.No.124 of 1996, which was dismissed. Thereafter, accused No.1 filed appeal before the High Court vide FCA No.2735 of 2000, which was transmitted to the Ranga Reddy District Court for enquiry and the same was numbered as O.P.No.535 of 2010 and after trial, the said OIP was dismissed on 30.09.2010. Aggrieved by the same, accused No.1 has filed appeal vide FCA No.283 of 2013 before the High Court and the same is pending.
b) The de-facto complainant is depending on her daughter. Accused No.1 is residing in Hyderabad and looking after his ancestral property and attending the hearing of the above mentioned case. On 29.09.2018 the de-facto complainant along with her daughter went to the native village of accused No.1 i.e., Batte Langa Village, Malikipuram Mandal, East Godavari District and found one unknown woman (accused No.2) in front of the house and when the de-facto complainant enquired with accused No.1, he replied that her name is Vijaya Venkata Satyanarayanamma and he got married her and they were also blessed with one daughter, who is studying 8th class. When de- 3 facto complainant enquired with accused No.2, she replied that accused No.1 informed her that he is going to give divorce to de- facto complainant within a short time and that de-facto complainant has no right to stay there and threatened them to leave the house or else they would see their end. The de-facto complainant came to know that accused No.1 without obtaining divorce from her has got married accused No.2 in the presence of Chelluboina Nageshwar Rao and Cheullboina Venkata Narsaiah at Yadagirigutta on 06.08.2000 at 11.24 hours and the marriage was performed by the priest Dastram Murali. On 17.10.2018 the de-facto complainant along with her daughter questioned accused No.1, on which accused No.1 has threatened to kill them. Accused No.2 and her parents i.e., accused Nos.3 and 4, both the children of accused No.1, her elder daughter Prasanna, accused No.1 and accused Nos.7 to 9 have colluded with each other to grab the property of accused No.1 and performed another marriage to accused No.1 without obtaining divorce from the de-facto complainant.
c) Based on the strength of the said complaint, a case in Crime No.985 of 2018 was registered for the offence under Sections 494 and 506 of the Indian Penal Code. After completion of investigation, charge sheet is filed, cognizance of 4 which was taken as C.C.No.348 of 2019 on the file of learned XXIV Additional Metropolitan Magistrate, Rachakonda at Hayathnagar. Aggrieved by the same, the petitioners - accused Nos. 1 to 5 have filed the criminal petition to quash proceedings against them in C.C.No.348 of 2019 on the file of learned XXIV Additional Metropolitan Magistrate, Rachakonda at Hayathnagar on the following grounds:
i) The petitioner Nos.1 and 2 never got married at the fag end of their age as petitioner No.1 is aged 74 years and petitioner No.2 is aged 48 years.
ii) The offence of Section 494 of the Indian Penal Code is seven years, as such there is no limitation to file the complaint against the accused and thereby the complaint is not maintainable as per the Limitation Act.
iii) The complainant alleged that the marriage took place on 06.08.2008 but it is false that marriage did not take place as per Hindu rites and customs as per her complaint and there is no sapthapadi and no other rites and customs of Hindu marriage.5
iv) The offence under Section 494 of the Indian Penal Code is a cognizable offence, as per A.P.Amendment of 1991-1992 in view of bar under Section 198 of the Code of Criminal Procedure and no cognizance can be taken by Magistrate except upon private complaint of victim/person but the case on hand the complaint before the Police is not maintainable as per the citation K.Bharati alias Padma and another v. Chandrakala and another1.
v) Even according to the complaint and remand case diary, there are no specific allegations against the petitioners. Since the petitioners are residing separately to the family of accused No.1 and de-facto complainant, the question of second marriage does not arise.
3. Heard Sri Ch.Venkat Raman, learned counsel for the petitioners as well as Sri S.Ganesh, learned Assistant Public Prosecutor and perused the record. Though notice to respondent No.2 was sent to the addressed mentioned in the complaint and charge sheet, the notice returned with an endorsement "insufficient address".
4. Now the point for determination is:
1 2016 (1) ALD (Crl.) 579 6 "Whether the proceedings against the petitioners-accused Nos.1 to 5 in C.C.No.348 of 2019 on the file of learned XXIV Additional Metropolitan Magistrate, Rachakonda at Hayathnagar, can be quashed under Section 482 of the Code of Criminal Procedure?
5. The main allegation of the de-facto complainant is that petitioner No.1, who is aged 74 years old, whose marriage was performed with her in the year 1977, were having good terms with the de-facto complainant since 1996 and since then both of them are living separately and accused No.1 has filed a petition for divorce and ultimately the same was declined and the matter is pending before the High Court.
6. The issue in respect of the present case came when the de-facto complainant stated to have visited the native place of accused No.1, which is Batte Langa Village, Malikipuram Mandal, East Godavari District on 29.09.2018, where she found a lady (accused No.2) in the said house and de-facto complainant stated to have asked accused No.1 as to who she was, for which, accused No.1 told her that he has married that lady and that he has a daughter by name Mohitha Laxmi through accused No.2 who is studying 8th class. Accused No.2 stated to have informed the de-facto complainant that the 7 accused No.1 told her that the divorce between him and de-facto complainant is likely to be granted in a short span of time and thereby accused No.2 has married accused No.1. Accused No.2 also asserted that the house, where she has been living along with accused No.1 belongs to her and sent de-facto complainant and her daughter out by threatening them with dire consequences.
7. Basing on the statements given by accused Nos.1 and 2, the de-facto complainant has filed a complaint, basing on which a case in Crime No.985 of 2018 has been registered under Sections 494 and 506 of the Indian Penal Code and on completion of investigation, the Police in confirming with the accusation of the de-facto complainant, charges were leveled against the petitioners for the offence under Sections 494 and 506 of the Indian Penal Code. The statements of de-facto complainant, contents of complaint, statements of other eyewitnesses, which were subsequently filed by the petitioners, would go to show that accused No.1 and accused No.2 are living together under one roof belonging to accused No.1 at Batte Langa Village, Malikipuram Mandal, East Godavari District and both of them stated to have informed the de-facto complainant that both of them are married.
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8. On perusal of the grounds of criminal petition seeking quashment of C.C.No.348 of 2019 at para No.7, while denying all the allegations of the de-facto complainant that the marriage took place between accused No.1 and accused No.2, it is mentioned that marriage did not took place as per Hindu rites and customs as there was no sapthapaid and other rituals were not followed. This statement of the petitioners would indicate that though sort of marriage was performed, it is not as per the rituals, which are required under Hindu Marriage Act. It is true that unless marriage is performed, which is recognizable under Law, either as per Hindu Marriage Act or under Special Marriage Act, it cannot be said that accused No.1 married accused No.2 during the subsistence of first marriage of accused No.1 with de-facto complainant. According to the de- facto complainant, marriage of accused No.1 was performed with accused No.2. According to the petitioners, rituals under Hindu Marriage Act were not performed, as such it is not a valid marriage. Until and unless, the marriage between accused No.1 and accused No.2 is a valid marriage, criminal liability under Section 494 of the Indian Penal Code cannot be fastened on them.
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9. While considering the application under Section 482 of the Code of Criminal Procedure, this Court cannot go into the details of the alleged marriage, which are disputed by the petitioners. Until and unless evidence is adduced, a finding whether the alleged marriage between accused No.1 and accused No.2 is a valid marriage or not. It is for the trial Court to decide as to whether the marriage between accused No.1 and accused No.2 is a valid marriage or not. So far as this court is concerned, there is a prima-facie material in the form of the statements of de-facto complainant and others, which go to show that accused No.1 and accused No.2 stated to have informed the de-facto complainant that both of them were married.
10. The other ground canvassed is that accused No.1 and accused No.2 are old aged persons, as such case against them has to be exonerated. It is true that accused Nos.1 and 2 are aged 74 and 68 years respectively as on the date of filing the criminal petition. Both of them are old persons, but, if at all the contents of complaint of the de-facto complainant are true, it does not matter whether accused Nos.1 and 2 are old aged persons or young persons and they have to answer the charges of bigamy punishable under Section 494 of the Indian Penal 10 Code. Therefore, age of accused Nos.1 and 2 cannot be a ground to quash the proceedings against the accused.
11. It is submitted by the learned counsel for the petitioners that the Police cannot file charge sheet against the petitioners for the offence under Section 494 of the Indian Penal Code in view of the bar contained in Section 198 of the Code of Criminal Procedure and as per the decision rendered in K.Bharati alias Padma and another v. Chandrakala and another1 no cognizance can be taken by Magistrate under section 494 of the Indian Penal Code except upon private complaint of victim/person.
12. The Legislative Assembly of the State of Andhra Pradesh by way of Andhra Pradesh Second Amendment Act 3 of 1992, amended the first schedule to Central Act 2 of 1974 i.e., the Code of Criminal Procedure, 1973 and made the offence under Section 494 of the Indian Penal Code a "cognizable" offence and a "non-bailable" offence. However, as seen from Section 198 of the Code of Criminal Procedure, the person who can file the complaint against the husband, who marries during the subsistence of his first marriage, is wife or anybody on her behalf. The word used in Section 198 of the Code of Criminal 11 Procedure is "complaint" as defined under Section 2 (d) of the Code of Criminal Procedure, which eliminates the report filed by the Police under Section 173 of the Code of Criminal Procedure.
12. Therefore, even though the offence under Section 494 of the Indian Penal Code is cognizable, on account of the fact that Section 198 of the Code of Criminal Procedure has not been amended facilitating the Police to initiate investigation and file charge sheet, bar under Section 198 of the Code of Criminal Procedure still continues. Therefore, even though the Police commenced investigation as offence under Section 494 of the Indian Penal Code is cognizable, still at the time of taking cognizance, still at the time of cognizance, learned Magistrate is required to see whether Section 198 of the Code of Criminal Procedure bar applies and therefore, in case if the report under Section 173 of the Code of Criminal Procedure is filed, Courts are not supposed to take cognizance and if the complaint is filed as defined under Section 2 (d) of the Code of Criminal procedure, the same can be taken cognizance.
13. In B. Parvathi v. The State Of Andhra Pradesh2 the high Court of Andhra Pradesh held as under:
2 LAWS (APH) - 2020-5-33 12 "Therefore, as per the definition of complaint under Section 2(d) Cr.P.C., any oral or written allegation that some person whether known or unknown has committed an offence made to a Magistrate to take action under the Code is a complaint and police report filed under Section 173(2) Cr.P.C. is specifically excluded from its purview. Section 2(r) Cr.P.C. defines "police report"
which means a report forwarded by a police officer to Magistrate under sub-section (2) of Section 173, which is generally termed as charge- sheet. So, only when an allegation relating to the offence under Section 494 IPC is made by the aggrieved person to the Magistrate, then only the Court can take cognizance of the case. Certainly the Court cannot take cognizance of the case for the offence punishable under Section 494 IPC on a police report/charge-sheet filed by the police. Eventhough offence under Section 494 IPC is made "cognizable"
offence as per amendment Act 3 of 1992, there is no corresponding amendment made to Section 198 Cr.P.C. Therefore, the bar under Section 198 Cr.P.C. still subsists. The legal position in this regard is not res nova and it has been clearly well settled."
14. Now the question to be decided is whether bar under Section 198 of the Code of Criminal procedure would apply under a situation wherein, if there is bar for one offence and 13 there is no bar for the other offence. Bar under Section 198 of the Code of Criminal procedure while taking cognizance will not in any way affect the case, if other offence for which there is no bar from taking cognizance is clubbed. That means in the case on hand, the offence under Section 494 of the Indian Penal Code cannot be taken cognizance by the Court if the complaint is filed under Section 173 of the Code of Criminal Procedure. So, far as Section 506 of the Indian Penal Code, there is no bar for taking cognizance for the said offence. The petitioners were charged for the offence under Sections 494 and 506 of the Indian Penal code. Therefore, taking cognizance of the case by the magistrate against the petitioners for the offence under Section 494 of the Indian Penal Code is irregular and in view of bar under Section 198 of the Code of Criminal procedure.
15. Though it is stated in the complaint by the de-facto complainant that the petitioners - accused Nos.1 and 2 have threatened herself and her daughter, there is nothing on record to show that the overt acts committed by the petitioners - accused Nos.1 and 2 has alarmed the de-facto complainant to cause any act which she is not legally bound to do, or to omit to do any act which she is legally entitled to do, as the means of avoiding the execution of such threat. Further, the offence 14 under Section 506 of the Indian Penal Code is an ancillary offence to the offence under Section 494 of the Indian Penal Code. Further, it is not mentioned in the complaint as to on which date, which place and in whose presence the de-facto complainant was threatened. Even otherwise, as observed already in the beginning, even if the contentions of the de-facto complainant are take into consideration the first petitioner is aged 74 years and second petitioner is aged 48 years and they are living together and they also blessed with a daughter studying 8th class, which goes to show that the alleged marriage between accused No.1 and accused No.2 was performed long ago and therefore from the date of their alleged marriage, the question of limitation also arises for making complaint after 19 years of such alleged marriage.
16. In view of the above facts and circumstances since taking cognizance of the case by the magistrate against the petitioners for the offence under Section 494 of the Indian Penal Code is against the procedure in view of bar under Section 198 of the Code of Criminal procedure and as there are no ingredients to attract the offence under Section 506 of the Indian Penal Code and also considering the aspect of limitation in filing the complaint after 19 years, this Court is of the opinion that 15 continuation of the proceedings against the petitioners in C.C.No.348 of 2019 on the file of learned XXIV Additional Metropolitan Magistrate, Rachakonda at Hayathnagar would amounts to abuse of process of law.
17. Accordingly, the Criminal Petition is allowed and thereby the proceedings against the petitioners-accused Nos.1 to 5 to in C.C.No.348 of 2019 on the file of learned XXIV Additional Metropolitan Magistrate, Rachakonda at Hayathnagar, are hereby quashed.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_______________________ DR. D.NAGARJUN, J Date: 01.11.2022 AS