Rajasthan High Court - Jodhpur
Shrawan Singh vs State Of Rajasthan on 6 January, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3716/2022
1. Shrawan Singh S/o Sh. Umed Singh, Aged About 36
Years, B/c Rajput, R/o Bayala, Teh. Sardarsahar, Dist.
Churu (Raj.).
2. Bhanwri Kanwar W/o Sh. Umed Singh, Aged About 64
Years, B/c Rajput, R/o Bayala, Teh. Sardarsahar, Dist.
Churu (Raj.).
----Petitioners
Versus
1. State Of Rajasthan, Through P.P
2. Mst. Sumer Kanwar W/o Sh. Pooran Singh, D/o Lt. Sh.
Karan Singh, R/o Quarter No. 76 G, Civil Lines, Shri
Ganganagar (Raj.).
----Respondents
For Petitioners : Mr. Pradeep Kumar Shah
For Respondents : Mr. AR Choudhary, P.P.
Mr. R.S. Choudhary
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
REPORTABLE
06/01/2023
1. This Criminal Misc. Petition under Section 482 Cr.P.C. has
been preferred claiming the following reliefs:-
"It is, therefore, most respectfully prayed that this Criminal
Misc. Petition may kindly be allowed and the order dated
06.04.2017 passed by the Learned Chief Judicial Magistrate, Sri
Ganganagar, taking cognizance of the offences as also the order
dated 31.03.2022 passed by the Learned Additional Sessions
Judge No. 1, Sri Ganganagar, dismissing the Revision Petition
preferred by the petitioner and affirming the order dated
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06.04.2017 passed by the Learned Chief Judicial Magistrate, Sri
Ganganagar, be quashed and set aside
Any other appropriate order or direction which this Hon'ble
Court deems just and proper may kindly be granted to the
petitioners."
2. As the pleaded facts and the record would reveal, a
complaint was filed by the complainant-respondent no.2-Sumer
Kanwar D/o Karan Singh, stating therein that she wed one Pooran
Singh on 11.05.2005, as per Hindu rites and rituals at Sri
Ganganagar. And that, on 24.05.2013, Pooran Singh wed Suman
Kanwar D/o Umaid Singh despite his first marriage subsisting with
the complainant-respondent no. 2.
2.1 On 27.09.2013, the complainant-respondent no.2-Mst.
Sumer Kanwar, filed an F.I.R. bearing No. 288/2013, at Police
Station-Mahila Thana, Sri Ganganagar against eight accused
persons namely; Puran Singh, Sajna Kanwar, Sujan Kanwar, Mithu
Kanwar, Kanta Kanwar, Manfool Singh, Prabhu Singh and Suman
Kanwar for the offences under Sections 420, 406, 498A and 494
IPC; upon investigation, a charge-sheet came to be filed on
03.02.2014, against three of the aforementioned eight accused
persons namely; Pooran Singh, Narpat Singh and Sajan Kanwar
for the offences under Sections 419, 420, 406, 498-A, 494, 171
and 120B IPC.
2.2 And that on 23.09.2016, the complainant-respondent no. 2
filed a private complaint before the learned Chief Judicial
Magistrate, Sri Ganganagar; whereupon the learned Court below
proceeded to take cognizance against the present petitioners,
Petitioner no. 1-Shrawan Singh (brother of the second wife-Suman
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Kanwar D/o Umaid Singh) and petitioner no. 2-Bhanwri Kanwar
(mother of the second wife), and eleven other persons for the
offences under Sections 494 read with Sections 109 and 114 IPC,
vide the impugned order dated 06.04.2017.
2.3 That a revision petition was preferred against the aforesaid
order before the learned Additional Sessions Judge No. 1, Sri
Ganganagar which came to be dismissed vide the impugned order
dated 31.03.2022.
3. Learned counsel for the petitioners submits that no specific
role has been attributed to the present petitioners in the alleged
crime in question, and that therefore, the learned Courts below
have erred in passing the impugned orders.
4. Learned counsel for the petitioners further submits that the
impugned F.I.R. was lodged after a delay of about 4 months
and that in the said F.I.R., the present petitioners-Shrawan
Singh and Bhanwri Singh were not named. That even in the
charge-sheet, that came to be filed subsequently, by the
concerned police authorities, the present petitioners were
also not arrayed as accused.
5. Learned counsel for the petitioners also submits that only
after the charge-sheet came to be filed, the complainant-
respondent no. 2 preferred a private complaint against the
present petitioners for the offences in question, with the
intention to falsely implicate them.
6. Learned counsel for the petitioners further submits that the
learned Trial Court below proceeded to take cognizance against
the present petitioners without due application of mind, despite a
lack of evidence to suggest any involvement on the part of the
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present petitioners, in the alleged crime in question. And that the
revision petition so preferred also came to be dismissed summarily
without appreciating the said relevant aspect of the matter.
7. Learned counsel further submits that this Court may exercise
its jurisdiction under Section 482 Cr.P.C. against an order of
cognizance, and placed reliance on the judgment rendered by the
Hon'ble Apex Court in the case of Madhu Limaye v. The State
of Maharashtra 1978 SCR (1) 749.
Relevant portion of the said judgment is reproduced as
hereunder:-
"Even assuming, although we shall presently show that it is not
so, that in such a case an order of the Court taking cognizance or
issuing processes is an interlocutory order, does it stand to reason
to say that inherent power of the High Court cannot be exercised
for stopping the criminal proceeding as early as possible, instead of
harassing the accused upto the end ? The answer is obvious that
the bar will not operate to prevent the abuse of the process of the
Court and/or to secure the ends of justice. The label of the petition
filed by an aggrieved party is immaterial. The High Court can
examine the matter in an appropriate case under its inherent
powers. The present case undoubtedly falls for exercise of the
power of the High Court in accordance with Section 482 of the
1973 Code, even assuming, although not accepting, that invoking
the revisional power of the High Court is impermissible."
8. On the other hand, learned counsel for the respondent and
learned Public Prosecutor oppose the present petition and submit
that the impugned orders have been rightly passed by the learned
Courts below, after taking into due consideration the overall facts
and circumstances of the controversy in the present case, and that
the present petitioners do not deserve the indulgence of this
Court, especially at the stage of cognizance.
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9. Learned counsel for the respondent also made the
submissions and fortified them with case-laws, in the following
manner:-
9.1 That the present petition is not maintainable as a revision
petition under Section 397 Cr.P.C. and has been preferred before
this Court in its jurisdiction under Section 482 Cr.P.C. and ought to
summarily dismissed. Reliance in this regard was placed upon the
judgment rendered by the Hon'ble Apex Court in the case of
Krishnan and Anr. v. Krishnaveni and Anr. (Civil Appeal No.
58/1997 decided on 24.01.1997).
Relevant portion of the same as relied upon, is reproduced as
hereunder:-
"8. The object of Section 483 and the purpose behind
conferring the revisional power under Section 397 read with
Section 401, upon the High Court is to invest continuous
supervisory jurisdiction so as to prevent miscarriage of justice or to
correct irregularity of the procedure or to meet out justice. In
addition, the inherent power of the High Court is preserved by
Section 482. The power of the High Court, therefore, is very wide.
However, High Court must exercise such power sparingly and
cautiously when the Sessions Judge has simultaneously exercised
revisional power under Section 397(1). However, when the High
Court notices that there has been failure of justice or misuse of
judicial mechanism or procedure, sentence or order is not correct,
it is but the salutary duty of the High Court to prevent the abuse of
the process or miscarriage of justice or to correct
irregularities/incorrectness committed by inferior Criminal Court in
its juridical process or illegality of sentence or order.
10. Ordinarily, when revision has been barred by Section 397(3) of
the Code, a person - accused/ complainant - cannot be allowed to
take recourse to the revision to the High Court under Section
397(1) or under inherent powers of the High Court under Section
482 of the Code since it may amount to circumvention of the
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provisions of Section 397(3) or Section 397(2) of the Code. It is
seen that the High Court has suo motu power under Section 401
and continuous supervisory jurisdiction under Section 483 of the
Code. So, when the High Court on examination of the record finds
that there is grave miscarriage of justice or abuse of process of the
Courts or the required statutory procedure has not been complied
with or there is failure of justice or order passed or sentence
imposed by the Magistrate requires correction, it is but the duty of
the High Court to have it corrected at the inception lest grave
miscarriage of justice would ensue. It is, therefore, to meet the
ends of justice or to prevent abuse of the process that the High
Court is preserved with inherent power and would be justified,
under such circumstances, to exercise the inherent power and in
an appropriate case even revisional power under Section 397(1)
read with Section 401 of the Code. As stated earlier, it may be
exercised sparingly so as to avoid needless multiplicity of
procedure, unnecessary delay in trial and protraction of
proceedings. The object of criminal trial is to render public justice,
to punish the criminal and to see that the trial is concluded
expeditiously before the memory of the witness fades out. The
recent trend is to delay the trial and threaten the witness or to win
over the witness by promise or inducement. These malpractices
need to be curbed and public justice can be ensured only when
trial is conducted expeditiously."
9.2 That the truthfulness of the allegation(s) made in the
FIR/complaint cannot to be considered at the stage of cognizance.
Reliance in this regard was placed on the judgment rendered by
the Hon'ble Apex Court in the case of K. Neelaveni v. State
Rep. By Inspector of Police & Ors. (Criminal Appeal No.
574/2010 decided on 22.03.2010).
Relevant portion of the same as relied upon, is reproduced as
hereunder:-
"8. We have given our thoughtful consideration to the
submissions advanced and we are inclined to accept the
submission of Mr. Guru Krishna Kumar, learned Counsel for the
appellant. From a perusal of the allegations made in the First
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Information Report, it is evident that the appellant has clearly
alleged that her husband had married another lady namely
Bharathi and the said marriage had taken place in the presence
and with the support of other accused persons. She had also stated
that from the second marriage with Bharathi a girl child was born.
In the First Information Report, it had clearly been alleged that
besides gold ornaments other household articles were given in
marriage and further she was subjected to cruelty and driven out
from the matrimonial home by the accused persons. In our
opinion, the allegations made in the First Information Report, at
this stage, have to be accepted as true, and allegations so made
prima facie, constitute offences under Sections 406 and 494 of the
Indian Penal Code. It has to be borne in mind that while
considering the application for quashing of the charge sheet, the
allegations made in the First Information Report and the materials
collected during the course of the investigation are required to be
considered. Truthfulness or otherwise of the allegation is not fit to
be gone into at this stage as it is always a matter of trial. Essential
ceremonies of the Marriage were gone into or not is a matter of
trial."
9.3 That at the stage of cognizance, the version of the defence is
not to be considered. Reliance in this regard was placed upon the
judgment rendered by the Hon'ble Apex Court in the case of Sonu
Gupta v. Deepak Gupta & Ors. (Criminal Appeal Nos. 285-
287/2015 decided on 11.02.2015) and on the judgment
rendered by a Coordinate Bench of this Hon'ble Court in the case
of Prem Bahadur v. State of Rajasthan & Anr. (S.B. Criminal
Misc. Petition Nos. 1352, 1243/2005 decided on 27.11.2013).
Relevant portion of the same as relied upon, is reproduced as
hereunder:-
In Sonu Gupta (supra):-
"7. Having considered the details of allegations made in the
complaint petition, the statement of the complainant on solemn
affirmation as well as materials on which the Appellant placed
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reliance which were called for by the learned Magistrate, the
learned Magistrate, in our considered opinion, committed no error
in summoning the accused persons.
At the stage of cognizance and summoning the Magistrate is
required to apply his judicial mind only with a view to take
cognizance of the offence, or, in other words, to find out whether
prima facie case has been made out for summoning the accused
persons. At this stage, the learned Magistrate is not required to
consider the defence version or materials or arguments nor he is
required to evaluate the merits of the materials or evidence of the
complainant, because the Magistrate must not undertake the
exercise to find out at this stage whether the materials will lead to
conviction or not."
In Prem Bahadur (supra):-
"13. The contention of petitioner Prem Bahadur is that he was
not present at the time of marriage as he was on leave and
Roznamcha has also been placed on record to support his defence
of alibi. Defence version cannot be looked into at the time of taking
cognizance, hence this plea is unwarranted at this stage."
10. Heard learned counsel for both parties as well as perused the
record of the case.
11. At the outset, this Court, while observing that the case laws
cited on behalf of the respondents do not render any assistance to
their case, makes the following observations in that regard:-
11.1 In the case of Krishnan and Anr. (supra), the Hon'ble
Apex Court has held that when the High Court notices that there
has been a failure of justice, it is the salutary duty of the High
Court to prevent a miscarriage of justice, and it is for such reason
that the High Court is vested with inherent powers.
11.2 The Hon'ble Apex Court in the case of K. Neelaveni
(supra) held that if a prima facie case is made out then
allegations made in the FIR while have to be accepted as true, and
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truthfulness would be determined at the time of trial. Similarly, a
Coordinate Bench of this Hon'ble Court in the case of Sonu Gupta
(supra) observed that at the stage of cognizance, the judicial
magistrate is to only see if a prima facie case is made out, in
summoning the accused.
11.3 The case of Prem Bahadur (supra) is distinguished from
the factual matrix of the present case, as the petitioner therein
was the accused-husband himself.
12. Before delving into the factual matrix of the present case,
this Court deems it appropriate to analyse the existing
jurisprudence on the issue in question.
12.1 In Chand Dhawan (Smt) v. Jawahar Lal (Criminal
Appeal No. 269/1992) decided by the Hon'ble Apex Court on
28.04.1992, it has been observed thus:-
"9. We are, therefore, of the view that the High Court has
clearly erred in reaching the conclusion that the proceedings are
liable to be quashed. In the light of the allegations made in the
complaint and the materials produced in support of those
allegations by the appellant before the magistrate, the issue of the
process to the respondents Nos. 1 and 2 who are alleged to
have solemnised the second marriage during the
subsistence of an earlier valid marriage of the appellant is
proper and when process has been issued, the proceedings
have to continue in accordance with law against these
respondents Nos. 1 and 2. So far as other respondents are
concerned, it may be said that they had been unnecessarily
and vexatiously roped in. The allegations in the complaint
so far as these respondents are concerned are vague. It
cannot be assumed that they had by their presence or
otherwise facilitated the solemnisation of a second marriage
with the knowledge that the earlier marriage was
subsisting. The explanation of the first respondent that the
second respondent has been functioning as a governess to look
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after his children in the absence of the mother who had left them
implies that respondents Nos. 1 and 2 are living together. In this
background, the allegations made against respondents 3 to 7
imputing them with guilty knowledge unsupported by other
material would not justify the continuance of the proceedings
against those respondents.
10. In our view , the complaint before the learned magistrate is
to be proceeded with against respondents Nos. 1 and 2 only.
11. Accordingly, we allow the appeal to the extent of setting
aside the impugned judgment so far as respondents Nos. 1 and 2
are concerned and restoring the complaint to be proceeded with as
against these two respondents and to be disposed of in accordance
with law."
12.2 In Kannan v. Selvamuthukani (Criminal Appeals Nos.
234-35/2012) decided by the Hon'ble Apex Court on
30.01.2012, it has been observed thus:-
"3. It is necessary to state the facts which led to these
appeals. The Respondent-Selvamuthukani @ Selvamuthu is the
original complainant ( 'the complainant' for short). She filed a
private complaint in the court of Judicial Magistrate No. 1,
Coimbatore being CC No. 620 of 1992 against Kannan (original
accused 1 - 'A1' for short), M. Rangan Chettiar (original accused 2
- 'A2' for short), Murugayee (original accused 3 - 'A3' for short), K.
Palaniammal (original accused 4 - 'A4' for short), Ganesan (original
accused 5 - 'A5' for short) and seven others. The complainant
alleged that she was married to A1 on 16.6.1980. According to her,
during the subsistence of her marriage with A1, A1 married A4 and
thus committed an offence punishable under Section 494 of the
Indian Penal Code (for short 'the Indian Penal Code'). The
complainant further alleged that by actively assisting and
participating in the said marriage ceremony, the other accused
abetted the commission of said offence and they are thus guilty of
offence punishable under Section 494 read with Section 109 of the
Indian Penal Code. After perusing the complaint and deposition of
the complainant, learned Magistrate framed charge under Section
494 of the Indian Penal Code against A1 and under Section 494
read with Section 109 of the Indian Penal Code against A2 to A5.
The complainant examined herself as PW-1. She also examined
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two more witnesses (PW-2 and PW-3). The accused examined two
witnesses in support of their case (DW-1 and DW-2). After
perusing the evidence on record, learned Magistrate held A1 guilty
of offence punishable under Section 494 of the Indian Penal Code.
He held A2 to A5 guilty of offence punishable under Section 494
read with Section 109 of the Indian Penal Code. He sentenced all
the accused to undergo rigorous imprisonment for two years each
and to pay a fine of Rs. 1,000/- each. In default, the accused were
to undergo rigorous imprisonment for one month.
9. The prosecution has clearly established that A1 was married
to the complainant on 16.6.1980. It is also a fact that A1 obtained
a decree of divorce on 20.2.1991 which was set aside on
10.2.1992 in the appeal carried by the complainant against the
said decree of divorce. Evidence of the complainant establishes
beyond doubt that A1 married A4 on 8.3.1992. The question is
whether the fact that the decree of divorce was set aside
and the marriage between A1 and the complainant was
revived was known to A3, A4 and A5. Merely because A3 is
the sister of A1, it cannot be presumed that she knew that
the decree of divorce was set aside. If A1 wanted to marry
A4, it is possible that he would keep back these facts from
his sister as also from A4 and A5 i.e. his second wife and
her father respectively.
10. In our opinion, the evidence of PW-1, PW-2 and PW-3 does
not conclusively establish that the fact that the decree of divorce
was set aside on 10.2.1992 was known to A3, A4 and A5 and,
therefore, benefit of doubt must be given to A3, A4 and A5. In the
circumstances, in our opinion, the impugned judgment and order
dated 24.9.2008 so far as it convicts and sentences A3, A4 and A5
needs to be set aside. Hence, the following order:
11. The impugned judgment and order dated 24.9.2008 passed
in Criminal R.C. Nos. 1439 and 1440 of 2005 is quashed and set
aside to the extent it convicts and sentences A3, A4 and A5.
Murugayee (original accused 3), K. Palaniammal (original accused
4), and Ganesan (original accused 5) are acquitted of the charge
under Section 494 read with Section 109 of the Indian Penal Code.
Their bail bonds stand discharged.
12. Appeals are disposed of in the afore stated terms."
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12.3 Malan and Ors. v. State of Bombay and Ors. (Criminal
Revision Application No. 750/1957) decided by the Hon'ble
High Court of Judicature at Bombay, on 31.10.1957.
Relevant portion of the said judgment is reproduced as
hereunder:-
"(5) The facts which have been found against all the accused
persons are as follows:
1. that these accused were present at the time of the celebration of
the marriage which was performed at the house of accused No. 9;
2. that all these accused had knowledge of the fact that accused No.
1 was purporting to marry a second wife during the life-time of his
first wife;
3. that these accused threw holy rice on the couple during the
performance of the marriage.
In addition to this, the facts found against accused Nos. 3 and
9 are as follows: Accused No. 3 distributed pan after the marriage
ceremony was over. Accused No. 9 held the "Antarpat" during the
performance of the marriage ceremony and he permitted the use
of his premises for the performance of the aforesaid marriage.
(6) The question for consideration is whether the aforesaid
acts or any of them constituted an abetment of the offence of
bigamy punishable under Section 494 I.P.C. There is very good
authority for the proposition that mere presence at the
commission of a crime even with the awareness that a
crime was being committed is not in itself an intentional aid.
This proposition is not being disputed by the learned
Government Pleader. In fact, this proposition was laid down
by this Court as early as in Empress v. Umi ILR 6 Bom 126.
The learned Government Pleader, however contended that though
this is so, there may be some cases in which persons may occupy a
position of influence and rank so that their presence may mean
encouragement to commit the crime and he contended that, when
such is the case, persons holding the position of rank and influence
should be regarded as abettors. For this purpose, the learned
Government Pleader relied upon a passage from Messrs. Ratanlal
and Dhirajlal's Law of Crimes 19th Edition, at page 230. The
passage is as follows: "Mere presence at the commission of a crime
cannot amount to intentional aid, unless it was intended to have
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that effect. To be present and to be aware that an offence is about
to be committed does not constitute abetment unless the person
thus present holds some position of rank or influence such that his
countenancing what takes place may, under the circumstances. be
held a direct encouragement.........."
This passage is based upon the case in Queen-Empress v.
Lakshmi. Crim Rev. Appln. No. 51 of 1868: Rat Un Cri Cas 303. So
far as this ruling is concerned, the aforesaid remarks are obiter. In
this case, the learned Judges actually came to the conclusion that
the woman who had been convicted of the offence of abetment did
not hold a special position and her mere knowledge of what was
done or was about to be done could not be held to be an
abetment. Therefore, the observations which were made in this
case do not give any help in deciding the present case. In my
opinion even if one agrees with the submission of the learned
Government Pleader that, under certain circumstance, where
persons present hold position of influence or rank their presence
should be construed an encouragement of the criminal act, in the
present case, it is impossible to hold that the aforesaid accused
persons held such a position vis a vis accused No. 1 that their
presence should be taken as having encouraged the accused No. 1
in committing the offence of bigamy so far as some of the accused
persons are concerned. the Learned Government Pleader had to
concede that their acts do not come within the principle which is
enunciated above. Accused No. is the brother of the bride. It is
conceded by the Learned Government Pleader that so far as these
accused persons are concerned, they cannot be said to be
occupying a position of rank or influence. and their presence
cannot be said to have encouraged accused No. 1 in the
performance of the void marriage. The learned Government
Pleader, however, contended that the acts of accused Nos. 1 to 4,
9, 11 and 12 stood on a different footing. the accused Nos. 2 and 3
are the parents of the bridegroom. and the accused No. 4 is his
uncle. Accused No. 9 is the police patil of the village at which the
marriage was celebrated and accused Nos. 11 an 12 are the
parents of the bride. It was contended that these persons occupied
a position of ranks and influence and, therefore, their presence
must be taken to have encouraged accused No. 1 in the
performance of the void marriage. This aspect of the case does not
appear to have been discussed before any of the lower Courts, and
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none the lower Courts has applied its mind on this subject. The
matter is one of presumption arising from certain relationship
existing between the parties. In my opinion the matter is one
which is dependent upon the evidence in each case. The admitted
fact is that these persons are related as aforesaid and that they
remained present at the aforesaid void marriage. There is
nothing else on the record of the case which would show
that their presence amounted to encouragement and that if
these persons had not remained present at the time of the
marriage, the offence of bigamy probably would not have
taken place and the accused No. 1 would have acted in a
manner different from what he did at the time of the
performance of the aforesaid marriage. Sometimes elders
do remain present even at marriages which they
disapprove. they may do so out of sentiments or social
considerations. Under the aforesaid circumstances, have regard
to the fact that I am dealing with this matter in a revision
application, and the fact that this aspect of the case has not been
considered by the lower Courts. I am not prepared to hold that the
aforesaid accused should be held to have encouraged the
performance of the void marriage simply from the fact that they
remained present at the marriage.
(9) The next point is whether the fact that the aforesaid
accused person threw holy rice on the couple should be regarded
as an act of abetment. The evidence discloses that this act of
throwing rice was done by the aforesaid persons during the time
when the 'antarpat' was held and the 'managalastakes' were being
recited. The question as to whether this act amounts to an
abetment or not depends upon a consideration of explanation 2 to
Section 107 I. P. C. That Explanation says that whoever, either
prior to or at the time of the commission of an act, does anything
in order to facilitate the commission of that act, and, thereby
facilities the commission thereof, is said to aid the doing of that
act. Therefore, in order that the aforesaid act of throwing rice may
be said to be an act of abetment, it is necessary to enquire
whether the act of throwing rice as done in order to facilitate the
commission of bigamy and, thereby bigamy and, thereby bigamy
was facilitated. . It is not shown that this act is one of the
necessary acts which has got to be performed in the celebration of
a marriage.
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...
It is not shown to me that the throwing of rice on the couple was a necessary part of the ceremony in the performance of a valid marriage. It appears that this thing is ordinarily done by all the spectators who remain present at a marriage, and the act is more consistent with the presence of the aforesaid persons at the time of the celebration of the marriage rather than actual participation in the acts which ultimately lead to the formation of the marriage contract. In my opinion, the aforesaid act in itself does not lead to the necessary conclusion that the act was done to facilitate the performance of the marriage, much less could it be said that thereby the performance of the marriage was facilitated. Under the aforesaid circumstances. I have come to the conclusion that the acts which have been brought home against all the accused persons, except accused No. 3 and 9, whose further case ill be considered hereafter, do not necessarily amount to an act of abetment.
(10) Before I part with the case of the aforesaid accused Nos. 2, 4, 5 to 8 to 13, I may mention that the learned Government Pleader had submitted that, in any case, the parents of the bride. i.e. accused Nos. 11and 12 should be convicted of the offence of abetment. He contended that the bride Krishnabai, being under 16 years of age, unless and until the aforesaid two parents had given the girl in marriage, the marriage ceremony could not have been performed. However, there is no prosecution evidence at all that these accused had played any such part. The only witness does not say a word about any part having been played by accused Nos. 11 and 12 other than the acts which have been already mentioned as having been held proved by the learned trial Judge and the learned appellate Judge. Therefore, I do not think that I would be justified in upholding the convictions of accused Nos. 11 and 12 on the footing that these two persons had given 'kanyadan' or done any other special acts which would bring them within the purview of Section 107 I.P.C.
(11) For the aforesaid reasons so far as accused Nos. 2, 4, 5 to 8 and 11 to 13 are concerned, the present revision application deserves deserves to be allowed, and their convictions deserve to be set aside.
(12) As regards accused No. 3, the only additional fact which had been found is that he distributed pan after the (Downloaded on 11/11/2023 at 09:25:20 PM) (16 of 42) [CRLMP-3716/2022] marriage was celebrated. This, in my opinion is in itself an innocuous act & it cannot be said that his act was done with the intention of facilitating the marriage, which had already taken place, nor can it be held that the marriage was performed in consequence f the distribution of the Pan. (13) So far as accused No. 9 is concerned, the evidence discloses that not only he allowed his premises to be used for the performance of the marriage, but he also further held the antarpat during the performance of the marriage. In ILR 6 Bom 126 , which I have already, referred to, it was held that mere permission to allow one's premises to be used for the purposes of the marriage does not in itself lead to the intentional aid and, this act did come within the purview of Explanation 2 to section 107 aforesaid. To this, the reply of Mr. Kotwal was that even if this was so, the offence under Section 114 cannot be said to have been committed, because in order that an offence under Section 114 may be brought home, it is necessary, first of all that the offence must fall within the purview of Section 109 I. P. C., and in order that an offence under Section 109 may be said to be committed, it is not merely enough that there should be an act of abetment, but, in addition to that, the prosecution must prove that the offence was committed in consequence of the abetment. He contended that although accused No. 9 may have given the aforesaid intentional and, it cannot be said that he offence of bigamy was committed in consequence of the act of holding the 'antarpat', Prime facie, this is so. However, the learned Government Pleader relied upon Explanation 2 to Section 107 I. P. C. That explanation, inter alia, states that an act is said to be committed in consequence of an abetment when it is committed with the aid which constitutes the abetment. The learned Government Pleader contended that the facts of the present case fall within the purview of the explanation aforesaid. The contention of Mr. Kotwal was the that the test which was to be applied for the purpose of finding out whether a crime is committed in consequence of abetment or not is to determine whether the offence would or would not have been committed if the international aid had not been given. I do not think, that I can subscribe to this view. There is nothing in the explanation aforesaid which justifies the aforesaid submission. (Downloaded on 11/11/2023 at 09:25:20 PM)
(17 of 42) [CRLMP-3716/2022] In my opinion, in order to determine whether an act has resulted in the commission of a crime, the only important thing which has go to be fund is whether the act was committed with the aid of the abettor in question, and, if it was committed with the aid, then, the act of the abettor would fall with regard to the fact that the 'antarpat' was held by accused No. 9 and it was done with the full knowledge that the marriage was a cold marriage, in my opinion, the act of accused No. 9 does fall within the purview of Explanation 2 to Sec. 107 I. P. C. Mr.. kotwal contended that the act o holding the 'antarpat' was done prior to the performance of the marriage, and, therefore, it should not be regarded as an act of intentional aid. This argument ignores Explanation 2 to Section 107 I. P. C. That explanation states in specific terms that an act of abetment may take place prior to the commission of the offence. Therefore, I have no doubt whatsoever that the act of accused No. 9 falls within the definition of the word 'abetment' in Section 107 I. P. C. In order that Explanation 2 to Section 107 may apply, it is and whether with that aid the act or the offence was committed. In my opinion, the aforesaid act, which has been brought home against accused No. 9 was an act of aid and, with that aid, accused No. 11 committed the offence of bigamy. Therefore, in my opinion, so far as accused No. 9 is concerned, the offence of abetment has been brought home against him and he was rightly convicted. Therefore, the revision application of accused No. 9, will be rejected, and so far as the revision application of the other accused is concerned, the same will be accepted.
12.4 In C.S. Varadachari and Ors. vs. C.S. Shanti Criminal M.P. No. 7370 of 1983 decided by the Hon'ble High Court of Judicature at Madras, on 24.12.1986, it has been observed as under:
"In the instant case, except stating than these accused 3 to 8 were present and they threw sacred rice over the couple and blessed them there is absolutely nothing to show that they intentionally aided the commission of the offence of bigamy. Even in respect of the allegation that they threw holy rice, blessed the couple and gave presents, the complainant has (Downloaded on 11/11/2023 at 09:25:20 PM) (18 of 42) [CRLMP-3716/2022] not examined any witness to the marriage and the alleged information was said to have been given by the witness cited in complaint to her father who in turn conveyed the same to the complainant. Hence, I find much force in the contention of the learned counsel for the petitioners in this regard."
12.5 The relevant portion of the judgment rendered in Rupa and Ors. vs. State of U.P. and Ors. (Criminal Misc. Application No. 31568/2011) decided by the Hon'ble High Court of Allahabad on 29.08.2013, reads as under:-
"27. For abetment of an offence, it is necessary that the abettor must have either instigated any person to do such an offence or must have engaged in a conspiracy for doing such an illegal act. In the instant case, there is no allegation against the applicants that they instigated Rajesh Kumar Deorar to commit an offence punishable under Section 494 IPC. There is no allegation that the applicants engaged themselves in any criminal conspiracy to commit an offence under Section 494 IPC. It is the case of applicant No. 1 that she did not know about any prior marriage of Rajesh Kumar Deorar with opposite party No. 2. Her presence at the time of incident dated 7.12.2010 has been falsified as held earlier. In the absence of any knowledge of prior marriage of Rajesh Kumar Deorar, the applicants cannot be held guilty for the offence under Section 494 IPC read with Section 109 or 114 IPC. As far as the material available in the case diary is concerned, it is evident that the second marriage of Rajesh did not taken place in the presence of opposite parry No. 2. Yogesh Kumar is a photographer, who performed photography and videography of the marriage, which took place on 9.12.2010 at Haridwar, During further investigation, statements of Laxmi Shanker Srivastava, Roshan Singh and Surendra Singh were recorded under Section 161 Cr.P.C. who stated that they went to Hotel View at Haridwar and found the marriage between Rajesh Kumar Deorar and Rupa being solemnized and seven pheras were performed. They questioned Rajesh Kumar Deorar that his first wife was alive and he did not do a proper tiling by performing remarriage, but Rajesh did not reply. From the statements of these three witnesses, only this much transpires that they protested with Rajesh Kumar Deorar (Downloaded on 11/11/2023 at 09:25:20 PM) (19 of 42) [CRLMP-3716/2022] about performing second marriage, but did not inform the applicants that Rajesh Kumar Deorar was married earlier with opposite party No. 2. They do not even speak about whether saptpadi was performed which is an essential ceremony for a valid marriage.
28. There is nothing in the FIR or in the statements of witnesses recorded in the case diary to show that the applicants had prior knowledge of alleged marriage of informant with Rajesh Kumar Deorar. To hold a person guilty for an offence of abetment to commit bigamy, it is essential to prove that such person must have prior knowledge of the existence of first marriage of the main person who is guilty of an offence under Section 494 IPC. In the absence of such knowledge, a person cannot be said to be guilty of abetment to commit an offence under Section 494 IPC. It may, however, be noted that the alleged earlier marriage between opposite party No. 2 and Rajesh Kumar Deorar is not an admitted fact and is yet to be established by positive evidence.
29. In C.S. Varadachari and others v. C.S. Shanti 1987 Cri LJ 1048, the Madras High Court held as under:
Mere allegation that accused were present and they threw sacred rice over the couple and blessed them there is absolutely nothing to show that they intentionally aided the commission of the offence of bigamy. Even in respect of the allegation that they threw holy rice, blessed the couple and gave presents, the complainant has not examined any witness to the marriage and the alleged information was said to have been given by the witness cited in the complaint to her father who in turn conveyed the same to the complainant. Hence, I find much force in the contention of the learned counsel for the petitioners in this regard.
30. In the instant case, there is no evidence to show that there was any intentional abetment on the part of the applicants to commit an offence under Section 494 IPC. Mere presence of applicant Nos. 2, 3 and 4 at the tune of marriage of applicant Mo. 1 with Rajesh Kumar Deorar does not make them criminally liable with-out any criminal intent on their past.
In these circumstances, this Court is of the opinion that Rajesh Kumar Deorar and his family members as well as Chhotey Singh and Ram Sajan, who were present at the house of Rajesh Kumar Deorar on 7.12.2010, may be presumed to have the knowledge of (Downloaded on 11/11/2023 at 09:25:20 PM) (20 of 42) [CRLMP-3716/2022] alleged earlier marriage of Rajesh Kumar Deorar with opposite party No. 2 and may be prosecuted for the offence punishable under Section 494 IPC or its abetment, but as far as applicants are concerned, there is no material to suggest that they had any prior knowledge of the alleged marriage between the opposite party No. 2 and Rajesh Kumar Deorar and, therefore, they cannot be prosecuted for the offence under Section 494 IPC read with Section 109 or 114 IPC."
12.6 In Achan Veetil Govindan Nambiar v. Kaikunnath Puthiya Veettil Rohini Crl. M.C. No. 907/1985 decided by the Hon'ble High Court of Kerala on 17.10.1985, it has been observed as under:
"1. In this petition filed under S. 482 of the Code of Criminal Procedure the only question which the petitioner wanted this Court to decide is whether anybody other than the man or woman who enters into a marriage with another who is having a legally married wife or husband living with subsisting marital relationship could be prosecuted for an offence punishable under S. 109 read with S. 494 of the Indian Penal Code.
3. There cannot be any dispute that whoever, whether husband or wife, 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 is guilty of the offence under S. 494. So also it is not disputed that a man or woman who enters into a marriage with another, who is punishable under S. 494 for contracting such marriage, is guilty of an offence punishable under S. 109 read with S. 494 if he or she enters into such marriage with the requisite knowledge. The dispute is only whether anybody else could be prosecuted for abetting bigamy.
4. ... The case of the petitioner is that marriage is a solemnisation with the free will and consent of the spouses and there cannot be any question of abetment or instigation by anybody else. According to him, if it is not with the free will and consent of the parties and if it was the result of abetment or instigation it is not a marriage at all and hence S. 494 or S. 109 cannot be attracted. For this and this reason alone he wanted me (Downloaded on 11/11/2023 at 09:25:20 PM) (21 of 42) [CRLMP-3716/2022] to find that accused 3 onwards including himself cannot be prosecuted at all and this Court has to quash the complaint as against them invoking the inherent jurisdiction.
6. It is true that marriage in some cases is a solemnisation and in some others it is a contract. Consent of the parties is required whether it is solemnisation or contract. Vitiating circumstances could be pleaded and proved for a marriage just like anything else. Abetment need not involve any of the vitiating circumstances on the basis of which a marriage could be avoided. Abetment is defined in S. 107 of the Indian Penal Code. It involves instigating a person to do a thing, engaging in conspiracy or intentionally siding by any act or illegal omission the doing of a thing. Instigation may involve wilful misrepresentation or wilful concealment of material facts which the abettor is bound to disclose. They may be vitiating circumstances. But aiding involves only doing of anything to facilitate the commission. Those who are contracting marriages coming within the mischief of S. 494 themselves knowingly commit either the offence under S. 494 or under 109 read with S. 494. What the abettor does is only substantially assisting the principal culprit towards commission of the offence. Abetment involves active complicity on the part of the abettor. In order to amount to abetment there must be mens rea or community of intention.
7. It may not be correct to say that abetment is out of question in an offence under S. 494 of the Indian Penal Code. The parties contracting or solemnising the marriage themselves may be liable only if there is the requisite mens rea. Therefore it may not be correct to rule out abetment. It is true that there is no express provision in the Indian Penal Code for punishment of abetment of an offence punishable under section 49(sic). But abetment of such an offence is punishable by reason of sections 109 and 114 of the Indian Penal Code as was held in A.I.R. 1952 Madras 193 followed by 1955 Crl. L.J. 1359. As held in A.I.R. 1931 Lahore 194 there must be evidence that the person accused of abetting knew that the person married was the wife of another. Therefore it is meaningless to contend that abetment of bigamy is unknown to criminal jurisprudence. There is no point in considering that marriage performed by abetment (Downloaded on 11/11/2023 at 09:25:20 PM) (22 of 42) [CRLMP-3716/2022] is no marriage at all and hence S. 109 is not attracted for an offence under S. 494. Even the Indian Penal Code contemplates offences being committed by compelling a person to marry against the wishes of that person. For example there is Section 366 of the Indian Penal Code."
13. This Court thus observes that the following principles are culled out as a result of the precedent laws, analysed hereinabove;
13.1 The truthfulness of allegations averred in the FIR/complaint lodged cannot be gone into at the stage of cognizance. However, if vague allegation(s) are levelled against the accused, and in the absence of a prima facie case, it would be well within the jurisdiction of the High Court in its inherent jurisdiction to quash such FIR/complaint/order of cognizance.
13.2 As noted in the case of Chand Dhawan (supra), mere presence at the time of solemnization of the bigamous marriage despite knowledge of subsistence of first/earlier marriage, would not amount to intentional aid i.e. abetment.
13.3 As noted in the case of Malan and Ors. (supra), at the time of solemnization of second marriage; mere presence of persons, the act of throwing holy/sacred rice, 'kanyadaan' or other special acts done, distribution of 'paan' do not constitute abetment to bigamy. However, while leasing or renting out premises for the bigamous marriage was also not held to be abetment, upon looking into the factual matrix, the act of performance of 'antarpat' was held to constitute abetment. Furthermore, persons; elders, other family members or otherwise, who participate in the bigamous marriage may do so despite their disapproval of the same, out of sentimental or social (Downloaded on 11/11/2023 at 09:25:20 PM) (23 of 42) [CRLMP-3716/2022] considerations or otherwise and the same also cannot be said to constitute abetment to bigamy.
13.4 As was noted in the case of CS Varadachari (supra), that throwing of holy/sacred rice, giving the couple blessings and/or presents would not amount to abetment of bigamy.
14. This Court also observes that the Hon'ble High Court of Kerala, in the case of Achan Veetil Govindan Nambiar (supra), when seized of an issue like that the present one, declined to adopt a view that although the IPC does not directly lay out abetment of bigamy as an offence, it would not be proper to take a view opposite to the same either. However, this Court is unable to adopt such a view.
15. This Court finds that the issue in the present case relates to whether third person(s), relatives or otherwise, of the person charged with the offence of bigamy under Section 494 or 495 IPC, can be proceeded against for the offence of abetment under the IPC.
For the sake of brevity, Sections 494 and 495 IPC are reproduced as hereunder:-
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 (Downloaded on 11/11/2023 at 09:25:20 PM) (24 of 42) [CRLMP-3716/2022] 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.
495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted. Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
16. This Court observes that the offences under Sections 494 and 495 IPC are non-cognizable and bailable. And the offence under Section 494 IPC is compoundable, as per Section 320 Cr.P.C.; the said position of law was also clarified in the judgment rendered by the Hon'ble Apex Court in the case of Parameswari v. Vennila (Criminal Appeal No. 741/1999) decided on 02.08.1999.
Relevant portion of the said judgment is reproduced hereinunder:-
"2. The appellants have been convicted for the offence punishable under Section 494 read with Section 109 IPC. They have now arrived at a settlement with complainant Vennila, wife of the appellant Sivaprakasam. Compromise was made in the presence of panchayadars of their village Mannachanallur. The compromise agreement duly signed by the parties and the panchayadars is placed on record of his Court. The appellants and complainant Vennila have now filed a joint application for permission to compound the offence proved against the appellants. He wife has also filed her consent independently and is also represented by an advocate. The compromise on he face of it appears to be reasonable and in the interest of the wife. The consent given by the wife also appears to be free and genuine. She is an educated woman. He offence in this case is compoundable (Downloaded on 11/11/2023 at 09:25:20 PM) (25 of 42) [CRLMP-3716/2022] with the consent of the wife and permission of the Court. In our opinion, this is a fit case in which permission deserves to be granted. Accordingly, we grant the application for permission o compound the offence with the result that the appellants stand acquitted of the offence for which hey have been held guilty. He appeals are disposed of accordingly. The bail bonds executed by the appellants shall stand cancelled."
16.1 This Court further observes that Chapter V of the IPC deals with the scheme of abetment, a further scrutiny of which is required to be adjudicated upon in relation to the controversy in question.
For the sake of brevity, the relevant Sections are reproduced as hereunder:-
Section 107. Abetment of a thing.--
A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
108. Abettor.-- A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.(Downloaded on 11/11/2023 at 09:25:20 PM)
(26 of 42) [CRLMP-3716/2022] Explanation 1.--The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
Explanation 2.--To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Explanation 3.--It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Explanation 4.--The abetment of an offence being an offence, the abetment of such an abetment is also an offence. Explanation 5.--It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.--An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
110. Punishment of abetment if person abetted does act with different intention from that of abettor.--Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other.
111. Liability of abettor when one act abetted and different act done.--When an Act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it: Provided the act done (Downloaded on 11/11/2023 at 09:25:20 PM) (27 of 42) [CRLMP-3716/2022] was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
17. On a bare reading of Section 107 IPC, it is clear that an act of abetment may take place in one of the three ways; namely, instigation, conspiracy, or intentional aid. It thus requires the commission of positive act, ascertainable by the factual matrix of a given case.
17.1 Similar is the explanation II to the said Section, which states that whoever does anything prior to the commission of the offence in order to facilitate its commission would be said to aid the same. The same would be a positive act.
17.2 However, in the alternative, as provided in explanation I to the said Section, anyone who makes a wilful misrepresentation or wilful concealment of a material fact which he/she/they is bound to disclose, the same would also amount to instigation. And thus, a negative act of the said nature would also come under the ambit of abetment.
18. This Court observes that the offence of entering into a bigamous second marriage, across the personal laws regulating marriage in India, comes under the purview of Sections 494 and 495 IPC.
18.1 As per section 17 of the Hindu Marriage Act, 1955, if a person considered to be a Hindu under the Act and marries another person in the existence of his/her/their first marriage, then the provisions under Sections 494 and 495 IPC shall apply accordingly.
(Downloaded on 11/11/2023 at 09:25:20 PM)
(28 of 42) [CRLMP-3716/2022] 18.2 Similarly, as per Section 5 of the Parsi Marriage and Divorce Act, 1936, if a person considered to a Parsi under the said Act, contracts a second marriage during the lifetime of the first spouse or without lawfully divorcing the first spouse, shall be subjected to the provisions of law contained in Sections 494 and 495 IPC. 18.3 And, as per Section 44 of the Special Marriage Act, 1954, if any person commits the offence of bigamy then he/she/they would come under the purview under Sections 494 and 495 of the IPC.
18.4 And although the laws regulating marriage and divorce among Christians and Muslims, do not explicitly mention the applicability of the Sections 494 and 495 IPC, the said Sections apply to them as well. The judgment rendered by the Hon'ble High Court of Kerala in the case of Venugopal K. v. Union of India (W.P. (C) No. 4559/2015) decided on 23.02.2015, clarifies the legal position on the same.
Relevant portion of the said judgment is reproduced as hereunder:-
"9. Muslim personal law allowed a Mohammadan to take four wives together. The challenge to Section 494 on the ground that it is ultra vires was repelled by the Allahabad High Court in Kamala Kumari v. Mohan Lal (II [1984] DMC 279 (Allahabad). It was argued before the court that the provisions of Section 494 are discriminatory on the ground of Religion. It was argued that although under the Muslim Law a person can have number of wives who will not be prosecuted for bigamy but a Hindu who takes the second wife, is prosecuted for bigamy is a clear case of discrimination. Repelling the above argument, the High Court observed as follows:
"The crux always is whether the classification has been based on any good and real relation or the discrimination is arbitrary. The (Downloaded on 11/11/2023 at 09:25:20 PM) (29 of 42) [CRLMP-3716/2022] Constitution provided for the amendment of personal laws as well. I may refer to the concurrent list contained in the Constitution. At serial No. 5 marriage and divorce, infants and minors; adoption; wills, intestacy and succession; joint family and petition have all been included in concurrent list and the Union of India as well as the State both are, therefore, empowered to make any law concerning these matters. Section 17 of the Hindu Marriage Act introduces the principles of monogamy. It is noteworthy that Art.44 of the Constitution provides that the State shall endeavour to secure for the citizens a uniform Civil Code. Christian, Parsis, Jews and Nayers happened to be already monogamous. If a similar provision for monogamy has been made for Hindus also, legislation is to be deemed for the benefit of class of persons to whom the Hindu Marriage Act is applicable and the argument that it is in fact directed against that class, making a discrimination, cannot hold water."
10. There may be cases where a Muslim male or female can be prosecuted for offence under Section 494 IPC also. In a case where a Muslim male marries a fifth wife, he can very well be prosecuted under Section 494 IPC since the 5th marriage will be void, personal law being having permitted only four wives to be taken together. Similarly a Muslim female contracting a second marriage can be proceeded with for offence under Section 494 IPC. Thus submission of the learned counsel for the petitioner that offence under Section 494 IPC is discriminatory between Hindu/Muslim/Christian is not acceptable.
13. In view of the forgoing discussion we are of the view that Section 494 does not discriminate between an offender belonging to Hindu/Muslim/Christian male or female belonging to any cast or creed and can be proceeded with under Section 494 of the Penal Code, 1860 provided ingredients of Section 494 are made out. We thus are of the view that the petitioner is not entitled to any of the reliefs as prayed for in the Writ Petition.
Writ Petition is dismissed."
19. It may be said that while crimes against society have to be dealt with an iron hand, crimes of a private nature, more particularly, dealing with offences of marriage and the unit of (Downloaded on 11/11/2023 at 09:25:20 PM) (30 of 42) [CRLMP-3716/2022] family, have to be dealt with an iron fist in a velvet glove, as it is a settled position of law that while matrimonial offences or offences pertaining to the unit of family, while still being criminal offences, have to be dealt with by the Courts with sensitivity and in a manner altogether different from that of crimes against society.
20. This Court observes that the nature of crime under Section 494 CrPC is not one of a heinous nature, nor does it have the physical or mental dimensions of a crime of social or psychological depravity. The crime of entering into a bigamous marriage is a crime on the part of the erring spouse who is already married, and it cannot be committed against anyone else. The persons other than the spouse(s) are mere spectators to the exercise of a personal choice, which may be erroneous and/or illegal, but such error and illegality can only be attributed to the erring spouse(s).
21. This Court further notes that in the judgment rendered by the Hon'ble Apex Court in the case of Joseph Shine v. Union of India (Writ Petition (Criminal) No. 194 of 2017) decided on 27.09.2018, in the concurring judgment rendered, Hon'ble Mr. Justice Rohintan F. Nariman, made the following observation with respect to the offence of bigamy, under the IPC:-
"It will be noticed that the crime of adultery punishes only a third party male offender as against the crime of bigamy, which punishes the bigamist, be it a man or a woman."
22. Although the above made observation was made in order to understand the contours of the crime of adultery vis a vis that of bigamy, the latter being gender neutral in punishing only the erring spouse; it reinforces the legislative intent contained in (Downloaded on 11/11/2023 at 09:25:20 PM) (31 of 42) [CRLMP-3716/2022] provision 494 Cr.P.C., being that the penalty for the commission of the offence of bigamy can and only sustain against an erring spouse.
23. Bigamy is thus an offence of private nature, affecting the sanctity of the institution of marriage, and creating a criminal charge over the erring spouse(s), however it cannot be said to be having an impact upon any person outside the marriage and therefore no criminal liability can be created against any other person whatsoever.
24. The act of entering into a bigamous marriage can have dire consequences upon the sanctity of the institution of the first marriage, however at the same time the burden of commission of such an offence has to rest solely on the shoulders of the spouse(s) alone and cannot implicate the wide range of family members or others.
25. Section 494 IPC is often seen in the same prism to that of Section 498A IPC, whereas upon a closer scrutiny, the same has a distinct character, as for the offence to be constituted under Section 498A IPC, the wife usually resides with the family members in a joint family, where the family members have a direct and uncontrovertable role to play in the commission of the offence. The family may through its actions jeopardize the living of one of the family members being the wife/ daughter in law, by causing harassment/demand for dowry, and/or other cruelties. The direct role of the family members is envisaged under the law in various legislations, which is not only plausible, but also can have an aggravating effect.
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26. Furthermore, the law deals with Section 498A IPC in a manner which is altogether different from that of Section 494 IPC. Despite Section 498A IPC being a cognizable and non-bailable offence, looking to the fact that it deals with the fundamental unit of family, and comes into play when relationships become fractious and disintegrate, owing to whatsoever reason(s), the jurisprudence on the same has evolved to ensure that all stakeholders; including but not limited to the concerned investigating authorities and the Courts, deal with such matters in a sensitive and mindful manner.
27. This Court is also conscious of the judgment rendered by the Hon'ble Apex Court in the case of Arnesh Kumar v. State of Bihar & Anr. (Criminal Appeal No. 1277/2014) decided on 02.07.2014, wherein while dealing with anticipatory bail of a husband accused of a matrimonial offence under Section 498A IPC and Section 4 Dowry Prohibition Act, 1960, the following observations were made:-
"There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498- A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six (Downloaded on 11/11/2023 at 09:25:20 PM) (33 of 42) [CRLMP-3716/2022] decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.
It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short 'Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:(Downloaded on 11/11/2023 at 09:25:20 PM)
(34 of 42) [CRLMP-3716/2022] "41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -
(a) x x x x x x
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
Xxxxxx From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be (Downloaded on 11/11/2023 at 09:25:20 PM) (35 of 42) [CRLMP-3716/2022] further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured."
28. The offence of abetment to bigamy cannot be said to be an offence having wide range of culpability as the nature of crime itself lies directly and solely upon the shoulders of the spouses alone, and the decision of entering into a bigamous marriage cannot be said to be one which may be an instigated/provoked/abetted decision, as it is the commission of an act of breaking of the sanctity of the first marriage.
29. The essential components of abetment, are to be seen in a completely different perspective while dealing with an offence of bigamy, which can happen only between two individuals. It occupies a unique position in the IPC, as almost all of the offences in the Indian Penal Code, 1860, can happen between any two or more individuals, whereas an offence of bigamy can happen only and only between two specific individuals; the spouses alone. Bigamy thus is a rare offence which excludes all other persons from its definition and commission, and so even if somebody wants, he/she/they cannot commit the offence of bigamy, unless such person is the husband or the wife within the marriage.(Downloaded on 11/11/2023 at 09:25:20 PM)
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30. The sanctity of marriage calls for the offence of bigamy to be strictly viewed and dealt with, even when the society is liberalizing. And if at all the decriminalization of the same while maintaining it as a civil wrong, then it may come up for consideration in an appropriate case.
31. Upon looking into the complete scheme of abetment contained in Chapter V of the IPC, and looking into the definition of 'abettor' under Section 108, and even Sections 109, 110, 111, 112, 113, 114, 115 and 116 IPC, this Court is of the clear opinion that abetment as an offence is intended and prescribed for commission of crimes, where wider amplitude of crime is envisaged. While bigamy operates strictly amongst spouses, the application of abetment cannot be possible.
32. The essential components of abetment vis a vis bigamy are dealt with and meted out in the manner that instigation being the first component of abetment means a person has to play an active role in the abetment, and when a husband or wife decide to walk out of an existing marriage, for whatsoever reason, and enter another, it is purely a personal decision, which may attract criminal penal provisions, only against the bigamist(s).
32.1 With regard to the second component of abetment, this Court finds that while conspiracy may be a valid ground for the commission of a crime against the society, but the offence of bigamy cannot be said to be a crime against the society as it is against erring spouses alone. It is not an offence which can be committed against the society at large, nor can it have any large impact on society as the only impact is upon the spouse and the marriage.(Downloaded on 11/11/2023 at 09:25:20 PM)
(37 of 42) [CRLMP-3716/2022] 32.2 This Court has taken into careful consideration the third component of abetment and finds that particularly the offence of bigamy, any aid cannot have any significance because the aid is not to marriage but facilitation to ceremony of marriage. Be it persons engaged; to play band instruments, as religious priests to perform ceremonies, as caterers, as guards, as decorators, as event planners, photographers, and so on and so forth, or the relatives, whether near or far. All such persons may have notice of the first marriage and may participate in the ceremony of the second marriage, yet it cannot be said that they fall within the domain of intentionally aiding the commission of the bigamous marriage.
32.3 With regard to whether any person would be bound to make a disclosure of the factum of subsistence of previous marriage of a person, this Court is unable to accept that such a duty can be placed upon anyone other than the spouse itself. In arriving at such a conclusion, this Court finds that if the bigamist, man or woman, if seeks to dupe another and enter into a bigamous marriage, would do everything within his/her/their power to hide such factum viz. either by performing such ceremony in secret, or by willing his close ones to remain mum. Thus, even if persons participate in the bigamous marriage, by act or mere presence, with knowledge of subsistence of earlier marriage, it cannot be said that they are abetting the same.
33. Furthermore, this Court also keeps into consideration the legislative intent in the provision of law contained in Section 43 Cr.P.C. in analysing whether a person, other than the erring spouse entering a bigamous marriage, would be liable to make (Downloaded on 11/11/2023 at 09:25:20 PM) (38 of 42) [CRLMP-3716/2022] disclosure of factum of subsistence of previous marriage of such bigamist.
For the sake of brevity, the said Section is reproduced as hereunder:-
43. Arrest by private person and procedure on such arrest.--
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-
bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. (2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him. (3) If there is reason to believe that he has committed a non- cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released."
33.1 This Court therefore observes that even if a private person is present at the time of commission of a cognizable offence, the language of the law contained in Section 43 Cr.P.C. states that a private person 'may' arrest or cause to be arrested, and while there are a catena of judgments by the Hon'ble Apex Court which speak to the effect that under certain circumstances the word 'may' shall be read in the context of 'shall' and impose a mandatory duty of compliance with the concerned Section of law, such interpretation has to fulfil the objective behind such legislation, and should be seen in such context. The present offence being a non cognizable offence, puts the offence of bigamy (Downloaded on 11/11/2023 at 09:25:20 PM) (39 of 42) [CRLMP-3716/2022] beyond its purview as bigamy is neither a non-bailable nor a non- cognizable offence. Thus, no duty is cast in law on any person to make such information available to the police. 33.2 In the judgment rendered by the Hon'ble Apex Court in the case of Smt. Bachahan Devi & Anr. v. Nagar Nigam, Gorakhpur & Anr. (Appeal (Civil) 992/2018) decided on 05.02.2018, the following observations were made:-
"11. The delicate question that remains to be examined is what is the position in law when both the expression "shall" and "may"
are used in the same provision.
12. Mere use of word 'may' or 'shall' is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue." 33.3 While at first glance, it may be assumed that a private person ought to arrest or cause to be arrested a person who in his presence commits a cognizable offence, the same cannot be said to be mandatory/obligatory. It would be within the discretion of such person witnessing the commission of a cognizable offence(s) whether it would be reasonable and possible for them to arrest or cause such person to be arrested, it would not be feasible to say that in all situations, persons ought to act, as it may be a question of their own safety, well-being or otherwise. And therefore, no (Downloaded on 11/11/2023 at 09:25:20 PM) (40 of 42) [CRLMP-3716/2022] obligation can be placed upon a person to mandatorily report the commission of a cognizable offence committed in his presence. 33.4 Therefore, this Court is of the clear opinion that even in witnessing the commission of a cognizable offence, the law can not and does not impose a mandatory and legal duty upon a third person to report the same, but provides for the procedure for the same if taking action on the part of such third person is feasible within his/her/their understanding, in the given circumstances.
34. In the instant case, the offence of bigamy is a non- cognizable offence. While the duty of a third person under Section 43 Cr.P.C. in witnessing the commission of a cognizable offence itself is not obligatory on such person, it would be unjust and improper to say that any person aware of the factum of subsistence of previous marriage of a bigamist, ought to make such disclosure. And therefore, the same would not and cannot fall within the realm of abetment.
35. This Court is of the firm opinion that in the changing times, the dimensions of culpability with respect to matrimonial offences ought to be revisited, otherwise, it shall create more impediments and weakness in the institution of marriage, rather than strengthen it.
36. The goal of the law with the introduction of such a penal provision was to strengthen the institution of marriage while carving out the definition of criminal activity pertaining to the same which is a matrimonial wrong, against the bigamist alone.
37. At the cost of repetition, this Court thus finds that the ambit of bigamy is narrow and limited to the erring spouses (Downloaded on 11/11/2023 at 09:25:20 PM) (41 of 42) [CRLMP-3716/2022] alone. It cannot be expanded or said to have a wider connotation by way of abetment.
38. The fact that bigamy is a compoundable, bailable and non cognizable offence, itself reveals the peculiar nature of an offence, which is punishable with imprisonment upto seven years and with the imposition of a fine.
39. This Court is of the opinion that in the present case also the expansion of the offence of bigamy on the face of it would not only lead to unruly and unfair circumstances, but would also create distraught conditions in families of erring persons. And therefore, no other person, except the erring spouse, may be saddled with criminal culpability. 39.1 In the case of Joseph Shine (supra), the Hon'ble Apex Court held that the difference between the offences of adultery and bigamy, is that while adultery is an offence involving a third party, the offence of bigamy is an offence only between the spouses, and therefore within the realm of marriage. It thus makes clear that the offence of bigamy can be sustained only to the extent of the bigamist spouse, and not against any other third party.
40. While this Court is of the clear opinion that a bigamist, be it a man or woman, ought to be proceeded in strict accordance with the provision of law contained in Section 494 IPC, it is unable to accept the proposition that a person may abet the offence to commit the offence of bigamy.
41. Thus, this Court holds that while the offence under Section 494 IPC shall continue to operate against the husband or wife who enter into a bigamous marriage, the offence of abetment to (Downloaded on 11/11/2023 at 09:25:20 PM) (42 of 42) [CRLMP-3716/2022] bigamy cannot and would not operate upon anyone, be it family members or members of the society at large, for the offence cannot travel beyond that of a husband and/or wife.
42. As an upshot of the above discussion, the present petition is allowed. The impugned orders dated 06.04.2017 and 31.03.2022 are accordingly, quashed and set aside. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
91-SKant/-
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