Punjab-Haryana High Court
Krishna vs Davinder Kumar & Ors on 29 May, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Crl. Misc.No.18381 of 2013 1
In the High Court of Punjab and Haryana at
Chandigarh.
Crl. Misc.No.18381 of 2013
Date of Decision:- 29.05.2013.
Krishna
Petitioner.
Versus
Davinder Kumar & Ors. Respondents.
CORAM : HON'BLE MR.JUSTICE NARESH KUMAR SANGHI.
Present: - Mr. Balkar Singh, Advocate,
for the petitioner.
NARESH KUMAR SANGHI,J.
Prayer in this petition filed under Section 482, Cr.P.C is for setting-aside the order dated 12.07.2012 (Anneuxre P-1), passed by the learned Judicial Magistrate 1st Class, Ambala, and the judgment dated 01.05.2013(Annexure P-2) passed by learned Additional Sessions Judge, Ambala, whereby the revision petition filed by the petitioner challenging the order dated 12.07.2012 (Annexure P-1), was dismissed.
Brief facts of the case are that marriage of the petitioner, Krishna, was solemnized with respondent no. 1, Davinder Kumar. Respondents No. 2 and 3, namely, Ram Ratan and Tripta, are the parents-in-law while respondent No. 4, Vandana, is the sister-in-law (Nanad) of the petitioner. The petitioner filed a complaint against all the four respondents Aggarwal Anoop Kumar 2013.07.26 10:46 I attest to the accuracy and integrity of this document High court Chandigarh Crl. Misc.No.18381 of 2013 2 alleging the commission of the offences punishable under Section 494 and 120-B, IPC, on the ground that Davinder Kumar had filed a petition for divorce against the petitioner, Krishna, but the same was withdrawn on 01.08.2005 on account of a compromise effected between them. However, respondent No. 1, Davinder Kumar, refused to maintain the petitioner. Later on, petitioner Krishna came to know that Davinder Kumar had performed second marriage with one Romila, daughter of Tarsem Lal Nahar, and he even could not pull on well with his second wife and FIR No. 22 dated 08.04.2013, for the offences punishable under Sections 323, 406 and 498-A, IPC was registered against Davinder Kumar and his family members at the behest of the above said Romila, the second wife of Davinder Kumar. It is also alleged that respondents No. 2 to 4, i.e. the parents-in-law and the sister-in- law, participated in the second marriage of Davinder Kumar with Romila knowing fully well that the first marriage of Davinder Kumar with the petitioner, Krishna, was still subsisting, therefore, they committed the offences punishable under Sections 494 and 120-B, IPC.
Learned Judicial Magistrate 1st Class, Ambala, while dismissing the complaint qua respondents No. 2 to 4 observed as under:-
" After appreciating the arguments advanced by learned Counsel for the complainant and perusing the oral as well as documentary evidence led on the record, I am of the Aggarwal Anoop Kumar 2013.07.26 10:46 I attest to the accuracy and integrity of this document High court Chandigarh Crl. Misc.No.18381 of 2013 3 considered view that a prima-facie case punishable under Section 494, IPC is made out against the accused No. 1. Offence under Section 120-B, IPC is not made out against the accused as a mere participation of accused Nos.2 to 4 in the second marriage of accused No. 1
does not meet the requirements of section 120- B of the IPC. Therefore accused No. 1 is hereby summoned under Section 494 of the IPC."
Aggrieved against the order passed by learned Judicial Magistrate 1st Class, Ambala, the petitioner presented a Criminal Revision Petition before the Court of Session, at Ambala, and the same was dismissed by the learned Additional Sessions Judge, Ambala, vide order dated 01.05.2013, by holding as under:-
"Applying the principles laid down in the above stated reports to the present case, I may state that by the impugned order, the learned Magistrate has ordered the summoning of accused no. 1 under section 494, IPC. However, it has not summoned accused nos. 2 to 4 under Section 120-B, IPC. It means that the proceedings before the learned Magistrate, even if the present petition is dismissed, will continue. Even if it is allowed and the prayer of the petitioner is accepted, the proceedings before the learned Magistrate will continue. On either side, the decision of the petition in question will not culminate/terminate the proceedings pending decision before the learned Magistrate. The test laid down in the above Aggarwal Anoop Kumar 2013.07.26 10:46 I attest to the accuracy and integrity of this document High court Chandigarh Crl. Misc.No.18381 of 2013 4 stated reports is that the decision of the present petition should terminate the proceedings in question as a whole. However, in the present case, its decision, on either side, as stated above, will not terminate the proceedings. The net result of the law declared in the above stated reports is that the impugned order dated 12.07.2012 is interlocutory in nature. It being so, the present revision petition, against the said order, is barred under section 397 (2) of the Code of Criminal Procedure.
For the reasoning given and discussion made in the preceding portion, the instant revision petition is dismissed as not maintainable."
There is substance in the arguments of the learned counsel for the petitioner when he submits that the learned Additional Sessions Juge, Ambala, has wrongly dismissed the Criminal Revision Petition holding that the order dismissing the complaint qua respondents No. 2 to 4 was an interlocutory order and hence the Criminal Revision Petition was not maintainable as per the provisions contained in Section 397 (2), Cr.P.C.
While appreciating the facts, the learned Revisional Court failed to appreciate that qua respondents no. 2 to 4, i.e. Ram Ratan, Tripta and Vandana, the complaint was dismissed, therefore, qua them the order passed by the learned Judicial Magistrate 1st Class, Ambala, had attained finality and by no stretch of imagination, it can be held that the impugned order Aggarwal Anoop Kumar 2013.07.26 10:46 I attest to the accuracy and integrity of this document High court Chandigarh Crl. Misc.No.18381 of 2013 5 before the said court was an interlocutory order. While hearing the arguments once it was thought that the matter be remitted to the board of the learned Additional Sessions Judge, Ambala, for deciding the Criminal Revision Petition afresh but the facts of the case revealed that the order dated 12.07.2012 (Annexure P-1) passed by the learned Judicial Magistrate 1st Class, Ambala, whereby the complaint for the offences punishable under Sections 494 and 120-B, IPC, qua respondents No. 2 to 4 was rightly dismissed, therefore, this court deems it appropriate to appreciate the facts of the case and decide the issue in this petition itself.
According to the allegations, the petitioner, Krishna, is the first wife of respondent No. 1, Devinder Kumar. They could not pull on well and respondent No. 1, Devinder Kumar, filed a petition for grant of divorce, but due to intervention of the respectable and the relatives, the said petition was withdrawn. The petitioner was not allowed by respondent No. 1, Devinder Kumar, to live with him. Later on, she came to know that Devinder Kumar had performed a second marriage with one Romila. It also came to her notice that Romila had lodged the FIR for the offences punishable under Sections 323, 406 and 498-A, IPC, against Devinder Kumar and his family members. After coming to know the above facts, the petitioner filed a complaint for the prosecution of Devinder Kumar, his parents, Ram Rattan and Tripta, and sister, Vandana (respondent Nos. 2 to 4), for the offences punishable Aggarwal Anoop Kumar 2013.07.26 10:46 I attest to the accuracy and integrity of this document High court Chandigarh Crl. Misc.No.18381 of 2013 6 under Sections 120-B and 494, IPC. It was alleged in the complaint that respondent Nos. 2 to 4 i.e. the parents of Devinder Kumar and sister, Vandana, knew that the first marriage of Devinder Kumar was subsisting and they participated in the second marriage of Devinder Kumar with Romila.
In order to prove her allegations, the complainant appeared as CW-1 and produced Bakshish Lal as CW-2 and Harish Vij as CW-3 in the preliminary evidence.
From the material available on record, it transpires that the only allegation against the parents and the sister, i.e. respondent Nos. 2 to 4, of Devinder Kumar are that they participated in the second marriage of Devinder Kumar. Mere participation in the marriage, in spite of the fact that they had the knowledge regarding the first marriage of Devinder Kumar would not mean that they abetted Devinder Kumar to perform the second marriage with Romila. The complainant-petitioner, Krishna, had not attended the said marriage. There is no direct evidence or material to show that respondent Nos. 2 to 4 abetted, instigated, conspired or in any manner assisted Devinder Kumar to perform his second marriage with Romila. Mere allegation that respondent Nos. 2 to 4 participated in the second marriage of Devinder Kumar would not be sufficient to order them to face prosecution for the offences punishable under Sections 120-B and 494, IPC.
In the matter of Chand Dhawan v. Jawahar Lal, Lal, Aggarwal Anoop Kumar 2013.07.26 10:46 I attest to the accuracy and integrity of this document High court Chandigarh Crl. Misc.No.18381 of 2013 7 1992 (3) R.C.R. (Criminal) 534, 534 Hon'ble the Supreme Court held that on the basis of vague allegations in the complaint, it cannot be assumed that the persons who attended the marriage or by their presence or otherwise, facilitated the solemnization of a second marriage with the knowledge that the earlier marriage was subsisting.
Similarly, in the matters of Nafe Singh v. Mohinder Dass, Dass, 2002 (1) R.C.R. (Criminal) 538; Om Parkash Sharma and others v. Jagatjit Singh Ahluwalia, Ahluwalia, 2009 (2) R.C.R. (Criminal) 496; and Balwinder Singh and others v. State of Punjab and another, another, 2011 (1) R.C.R. (Criminal) 386, 386 this Court held that from mere presence it cannot be assumed that the persons who attended the marriage had facilitated solemnization of the second marriage with the knowledge that earlier marriage was subsisting.
In view of the facts and the law on the subject, this Court is of the considered opinion that the learned Judicial Magistrate has rightly opted not to summon respondent Nos. 2 to 4 to face trial for the offences punishable under Sections 120-B and 494, IPC. Therefore, the present petition sans merit and the same is hereby dismissed.
(NARESH KUMAR SANGHI) 29.05.2013 JUDGE Anoop/Parshant Aggarwal Anoop Kumar 2013.07.26 10:46 I attest to the accuracy and integrity of this document High court Chandigarh