Andhra Pradesh High Court - Amravati
Y.Ramadevi vs Statye Of Ap on 11 December, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition No.3920 of 2019
ORDER:
In this petition, filed under Section 482 Cr.P.C., the petitioner- A2 seeks to quash the order dated 01.05.2019 in Crl.R.P.No.25/2018 passed by the learned II Additional Metropolitan Sessions Judge, Visakhapatnam, dismissing the Crl.R.P. filed by the petitioner-A2 to set aside the order dated 09.02.2018 of the learned I Additional Chief Metropolitan Magistrate, Visakhapatnam in C.C.No.128/2012 taking cognizance of the offence punishable under Section 494 IPC against the petitioner-A2 and issuing notice to her.
2. The parties in this Criminal Petition are referred to as they were arrayed before the trial Court.
3. The de facto complainant gave report to police inter alia alleging that her marriage with A1 was held on 26.01.2007 and that during the subsistence of their marriage, recently he married A2 who gave birth to a male child in Sree Nursing Home, Hyderabad and knowing the same when she questioned him about the second marriage, he threatened her and also demanded Rs.1.00 Crore or else he would leave her and her son. Basing on her report, the Station House Officer, IV Town Police Station, Visakhapatnam registered a case in Cr.No.685/2011 for the offences under Section 498A IPC and Sections 3 & 4 of the Dowry Prohibition Act against A1 and after investigation filed charge sheet against A1 for the aforesaid offences. The trial Court took cognizance against A1 for the offences under 2 Section 498 IPC and Sections 3 & 4 of the Dowry Prohibition Act and proceeded with trial. Thereafter, it appears, when the matter was coming up for further cross-examination of PW1, the trial Court basing on additional charge sheet filed by the I.O. in the year 2014 for the offence under Section 494 IPC, took cognizance of the offences punishable under Section 498A & 494 IPC and Sections 3 & 4 of the Dowry Prohibition Act against A1 and under Section 494 IPC against A2 on 09.02.2018.
4. Aggrieved by the impugned order taking cognizance of the offence under Section 494 IPC against A2, she preferred Crl.R.P.No.25/2018 on the file of the learned II Additional Metropolitan Sessions Judge, Visakhapatnam, however, the learned Judge dismissed the Crl.R.P. observing that the complainant in her F.I.R. as well as in her evidence clearly stated that A1 had married A2 and they begot a male child in Sree Nursing Home and in the birth certificate A1 was shown as father of the child of A2 and therefore, it cannot be said that there were no ingredients for the offence under Section 494 IPC. Learned Judge further observed that even under Section 319 Cr.P.C. also the Court was competent to issue summons to any person against whom evidence was given stating that he committed an offence. Accordingly, the Crl.R.P. was dismissed.
Hence, the instant Criminal Petition is filed by the petitioner- A2.
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5. Heard Sri P.A.K. Kishore, learned counsel for petitioner, and learned Additional Public Prosecutor representing the first respondent-State.
6. The main plank of argument of the learned counsel for petitioner-A2 is that in the F.I.R. and evidence except stating that A1 had second marriage with A2 during the subsistence of his marriage with the de facto complainant, there was no whisper that the petitioner-A2 had already had a legally wedded marriage with someone else and that the said marriage was subsisting by the date of her alleged second marriage with A1. Learned counsel would strenuously argue that in the absence of averment and proof of the said basic and cardinal fact, petitioner-A2 cannot be prosecuted for the offence under Section 494 IPC. He would submit that unfortunately both the Courts below failed to notice this crucial legal aspect and went on taking cognizance of the offence under Section 494 IPC against petitioner-A2 including A1. He thus prayed to allow the criminal petition.
7. Per contra, learned Additional Public Prosecutor supported the impugned order arguing that the petitioner-A2 had, despite knowing that A1's marriage with the de facto complainant was subsisting, undergone marriage with A1 and therefore, she is also liable for prosecution under Section 494 IPC.
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8. I gave my anxious consideration to above respective arguments. I find considerable force in the argument of the learned counsel for petitioner-A2 for the following reason:
Section 494 IPC describes the offence of bigamy as follows:
494. Marrying again during lifetime of husband or wife.--
Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(Exception) --This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
In Pashaura Singh v. State of Punjab1, the Hon'ble Apex Court has culled out the ingredients of the offence under Section 494 IPC as follows:
(i) the accused must have contracted first
marriage;
(ii) he must have married again;
(iii) the first marriage must be subsisting and
(iv) the spouse must be living."
So, the sine qua non for attracting the offence under Section 494 IPC is that the accused must have contracted first marriage and it must be subsisting and the spouse of such first marriage is alive on the date of second marriage. When these ingredients are applied to the instant case, as rightly argued by the learned counsel for petitioner, the complainant in the F.I.R. and in her evidence only stated that when 1 (AIR 2010 SC 922) = MANU/SC/1820/2009 5 her marriage with A1 is in subsistence, he again married A2 and begot a son in Sree Nursing Home at Hyderabad on 14.01.2009. Except this statement she has not in clear terms mentioned about the previous marital status of A2. Precisely she has not stated that A2 was already married to another person and while her marriage with that man was subsisting she again married A1. In the absence of such allegation, leave aside the proof at this stage, the offence under Section 494 IPC cannot be attracted against petitioner-A2. Unfortunately both the Courts below have not dealt with this crucial legal aspect before taking cognizance of the offence under Section 494 IPC against petitioner-A2. Therefore, the impugned order is liable to be set aside so far as petitioner-A2 is concerned.
9. In the result, this Criminal Petition is allowed setting aside the order in Crl.R.P.No.25/2018 passed by the learned II Additional Metropolitan Sessions Judge, Visakhapatnam. Consequently, the criminal proceedings in C.C.No.128/2012 taking cognizance of the offence under Section 494 IPC against petitioner-A2 are hereby quashed. However, it is made clear that this order will not in any way preclude the trial Court from taking cognizance of the offence under Section 494 IPC against A1 along with other offences and proceeding with trial in accordance with law.
Interlocutory applications, if any, pending in this Criminal Petition shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 11.12.2019 MVA