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Manmeet Kour vs Harneet Kour And Ors. on 1 February, 2019

HIGH COURT OF JAMMU KASHMIR
AT JAMMU
CRMC No.201/2017 IA No.1/2017
Date of order:01.02.2019
Manmeet Kour vs Harneet Kour ors
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner/appellant (s) : Mr. Anil Khajuria, Advocate.
For respondent(s) : Ms. Deepali Arora, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. The petitioner, Manmeet Kour, alleged second wife of respondent
No.2 herein, has filed the present petition under Section 561-A
Cr.P.C., for quashing of the complaint titled “Harneet Kour vs
Joginder Singh and others” as well as the order dated 26.07.2016 by
virtue of which the trial court (Chief Judicial Magistrate, Jammu)
has taken cognizance against the petitioner for commission of
offence under Section 494/109 RPC.

2. In the petition, it has been stated that respondent No.1 instituted a
criminal complaint against the petitioner and three other accused
persons (performa respondents herein) and she had made several
allegations against her husband and other relatives in the said
complaint. The respondent no.1, apart from making several
allegations against her husband and other relatives, had further
made several averments in the complaint under reference wherein
she has alleged that the petitioner had married to the performa
respondent no.2 on 21.06.2015. It is further stated that respondent
no.1, in her complaint, had in fact admitted that she had no personal

CRMC No.201/2017 Page 1 of 11
knowledge in respect of the marriage, however, she has stated that
one Chandanpal Singh, a resident of Model Town Gangyal, Jammu
has allegedly witnessed the marriage on 21.06.2015, which was
allegedly solemnized according to Sikh Rites and Customs in
Gurudwara at Akhnoor. Therefore, from the perusal of the
complaint, it is evident that the respondent no.1 had in fact
attributed her knowledge in respect of alleged marriage on the
information received from the so called witness namely Chandanpal
Singh. That the impugned complaint was filed before the learned
CJM, Jammu on 28.05.2016 i.e., almost a year after the alleged
marriage was solemnized, however, the complainant had stated in
the complaint that she had got knowledge in respect of alleged
marriage from one Chandanpal Singh immediately after the same
was solemnized on 21.06.2015; that the learned Magistrate has
taken cognizance on 26.07.2016 without appreciating the true facts
in this regard.

3. The petitioner being aggrieved of the order impugned dated
26.07.2016, has challenged the same in the present petition on the
following grounds:

a) That the criminal proceedings lodged at the instance of
private respondent make out a glaring example of abuse of process
of court and on that short score only the criminal proceedings
including the order taking cognizance are liable to be quashed.

b) That the petitioner most humbly states that she has been
falsely implicated in the complaint at the instance of respondent
No.1 as even by the perusal of the complaint and the preliminary
statements recorded kin support thereof, no offence can be said to
have been made out against the petitioner.

c) That it is trite law that in every complaint for the
commission of offence u/s 494 RPC it is incumbent upon the
complainant to not only prove but there must be a specific
allegation in the complaint itself in respect of the essential
ceremonies of the marriage, which were performed at the time
when the alleged marriage was solemnized and in the absence of the

CRMC No.201/2017 Page 2 of 11
religious ceremonies being spelled out in the complaint, no offence
u/s 494 RPC can be said to have been committed.

d) That a bare perusal of the complaint would unflinchingly
show that the complainant/respondent no.1 has merely averred in
the complaint that the alleged marriage was solemnized according
to Sikh Rites and Customs in Gurudwara at Akhnoor and on
similar lines said fact is sought to be proved through the witness
namely Chandanpal Singh. That even from the perusal of the
preliminary statements, it transpires that the learned trial court has
heavily relied upon the preliminary statement of one Chandanpal
Singh, who has also failed to state anything in respect of the
ceremonies of the marriage and in his preliminary statement, the
said witness has only stated that on 21.06.2015 he had alleged to
have seen the petitioner getting married to respondent no.2 before
Guru Granth Sahib in accordance with Sikh Rites and Ceremonies.
The aforesaid statement of said witness even is not sufficient to
draw any inference of marriage as there is no mention of the
necessary ceremonies, which were allegedly performed. Therefore,
even if the version of the said witness is taken on its face value, the
same fails to make out any case for the commission of offence u/s
494 RPC herein, the petitioner however, strongly refutes the very
factum of marriage alleged in the complaint and the aforesaid
averments are made only in order to substantiate that even if the
complaint, the preliminary statements as well as the other record is
considered on its face value, without any demur, the
complainant/respondent no.1 miserably failed to make out any case
for the commission of offence u/s 494 RPC. Therefore, the learned
trial court was legally unjustified to issue process in the complaint
and as such the complaint as well as the order impugned dated
26.07.2016 deserved to be set aside.

e) That additionally, the petitioner further states that she was
initially married to one Amar Preet Singh and the marriage
between the petitioner and her erstwhile husband came to be
dissolved by virtue of a decree of divorce by mutual consent on
29.07.2013. It is respectfully submitted that the witness namely
Chandanpal Singh and another namely Inderpal Singh happened to
be the first cousins of petitioner’s erstwhile husband and having
regard to the fact that despite the dissolution of marriage between
the petitioner and her erstwhile husband on 29.07.2013, the
litigation in respect of the maintenance of the child born out of the
previous marriage is pending between the petitioner and her
erstwhile husband. Moreover, the erstwhile husband of the
petitioner has also filed petitioner for the custody of the child
against the petitioner. IN the backdrop of the fact that the
petitioner is litigating against her erstwhile husband, the
respondent no.1 has connived with the two witnesses namely
Chandanpal Singh and Inderpal Singh to make out a false and
frivolous case against the petitioner. The criminal proceedings
lodged at the instance of respondent no.1 are attended by malafides

CRMC No.201/2017 Page 3 of 11
and the same are lodged only to wreck vengeance against the
petitioner. The criminal proceedings are liable to be quashed on
this ground also.

4. I have heard learned counsel for the parties and perused the case
file.

5. Learned counsel for the petitioner has reiterated all the grounds
taken in the memo of this petition.

6. During the course of arguments, learned counsel for the petitioner
in support of his contentions, has relied upon the judgment of the
Supreme Court in case titled Lingari Obulamma vs L.Venkata
Reddy and others, reported in 1979 AIR (SC) 848; judgments of
the Punjab and Haryana High Court in case titled Udha Singh @
Udhapal Singh vs Mohinder Kaur, reported in 1991 (3) R.C.R
(Criminal) 646; and in case titled Ashok Kumar Chopra vs
Krishna Kumari, reported in 1993 (1) HLR 111 and the judgment
of Calcutta High Court in case titled Binoy Kumar Gupta vs.
Leela Gupta and another, reported in 2007 (4) Cal. H.C.N. 491.

7. Whereas the learned counsel for the respondents has argued that the
present petition is not maintainable because the petitioner has raised
disputed question of fact which cannot be entertained in this
petition. In the complaint as well as in the statements recorded in
support of the complaint, it has been specifically mentioned about
date and solemnization of marriage ceremonies.

8. I have given my thoughtful consideration to the whole aspect of the
matter. From perusal of the complaint, it reveals that Harneet Kour-
respondent No.1 herein filed a criminal complaint against four
accused including her husband, parents in law and the present

CRMC No.201/2017 Page 4 of 11
petitioner with whom second marriage allegedly has been
solemnized.

9. From perusal of documents attached with this petition, it is evident
that respondent No.1 filed a complaint before CJM, Jammu under
section 494 RPC; in the complaint it has been stated that her
marriage was performed with accused No.1/her husband on
19.04.2009 according to Hindu rites and rituals at Jammu; one male
child was born out of the wedlock on 28.10.2010; right from the
beginning of marriage the attitude of accused No.1/her respondent
towards the complainant was not loveable, but cruel and hostile and
always harassed physically and emotionally for bringing less
dowry; parents-in-law of the accused/her husband also harassed and
tortured her for bringing less dowry and also not allowed her to
attend the office as she has obtained job of Class-IV on account of
death of her father; that even during the pregnancy and after the
birth of the child the attitude of accused/her husband not improved
and later he become more hostile. After delivery of the child on
28.10.2010, she was sent to her parental house along with the minor
child on the pretext that accused person cannot take care of the
complainant. Thereafter, after a gap of 10 months with the
intervention of some elder members of the family, she was taken
back but after remaining there for 4/5 months, she/complainant was
forced to leave the matrimonial house after being thrashed and
beaten by her husband. It is further stated that the complainant was
abused by the accused persons, the complainant tried to find out the
reasons why the accused No.1/her husband is not taking care of her
and her child, and she came to know that her husband used to make
calls during night to somebody and after hectic efforts, she came to

CRMC No.201/2017 Page 5 of 11
know that her husband used to call some girl namely Manmeet
Kour-petitioner herein, who was at that time also facing a divorce
case with her husband. Complainant also found that her husband
was having affair with Manmeet Kour-petitioner herein before
marriage. When she objected, her husband had thrown her along
with her minor child from the matrimonial home, her husband had
also filed a divorce petition on 03.07.2012, but thereafter withdrawn
the same on 05.11.2012. Thereafter, her husband again filed a
divorce petition before the learned Additional District Judge
(Matrimonial Cases), Jammu in 2015, which is still pending there.
The complainant has lodged a complaint with Women Cell, Jammu
on 18.08.2012, against her husband for harassing, ill-treating,
beating her; that Manmeet Kour, with whom her husband has
relation, has obtained divorce from her husband Amarpreet Singh
and she is a mother of girl child namely Minal Kour. That during
the pendency of proceedings of divorce petition in the matrimonial
court, it is utter shock to the complainant that accused No.1 married
to the accused No.4 on 21.06.2015 according to Sikh rites and
customs in Gurudwara at Akhnoor; that accused no.2 3 were
aware of the illicit relations of accused No.1 and 4 and, it is they
who encouraged, emboldened and advised accused No.1 to get
married with accused No.4 and on their advice accused No.1 has
taken such a bold step even during persistence of first marriage with
complainant and entered into the second marriage with accused
No.4; that the marriage was attended by accused No.2 3 and close
relatives of accused persons and thus abetted accused No.1 in
committing the offence under Sections 494 RPC. The recording of
Phone calls, which the complainant received clarifies this fact that

CRMC No.201/2017 Page 6 of 11
accused No.1 has married accused No. 4 even during the persistence
of first marriage; that Chandanpal Singh S/o Sh. Deedar Singh R/o
Model Town Gangyal, Jammu, who was incidentally present in
Gurudwara has witnessed the marriage, which was performed on
21.06.2015 according to Sikh rites and customs in Gurdwara at
Akhnoor, being cousin he immediately informed the complainant;
that the accused No.1 to 3 have sold their old house and bought a
new house at H.No.16 Sector-7, Lane No.0, Nanak Nagar, Jammu
and their neighbours namely (I) Rajvinder Kour W/o S. Manmeet
Singh R/o H. No. 9, Sector-7, Nanak Nagar, Jammu and neighbours
of Manmeet Kour (accused No.4), (ii) Tej Kour W/o S.Manmohan
Singh R/o 94, Sector-4, Model Town, Digiana, Gangyal, Jammu
informed about the factum of the marriage of accused No. 1 and 4
and even has witnessed all the ceremonies performed at their
residence; that Manmeet Kour i.e accused No.4 is staying with
accused No.1 at his residence as husband and wife; that the
complainant on investigating about the marriage of the accused
Nos.1 and 4 came across the various video clips and witnesses and
recording of different phone calls, evidencing the factum of
performing of illegal second marriage between accused No.1 and 4.
Even the daughter Minal Kour of accused No.4 has clarified the
factum of marriage that her mother is remarried to accused No.1
and has shown the pictures of accused No.1 and 4 of their visit to
Shimla for honeymoon; that the accused No.1 is married till date
with complainant and no divorce has taken place, so he has
committed crime under Section 494 RPC.

10. Court below after recording statements of complainant and
witnesses issued process against her husband u/s 494 RPC and

CRMC No.201/2017 Page 7 of 11
against petitioner-the alleged second wife and parents-in-law under
section 494/109 RPC on 26.7.2016.

11. In present case, the various and substantial grounds taken in the
petition are that there must be a specific allegation in the complaint
itself in respect of the essential ceremonies of the marriage, which
were performed at the time when the alleged second marriage was
solemnized and in the absence of the religious ceremonies being
spelled out in the complaint so the complaint is not
maintainable; that it has been merely averred in the complaint that
the alleged marriage was solemnized accordingly to Sikh Rites and
Customs in Gurudwara at Akhnoor; that witness has said that on
21.06.2015 he had seen the petitioner getting married to respondent
no.2 before Guru Granth Sahib in accordance with Sikh Rites and
Ceremonies; that the preliminary statements as well as the other
record is considered on its face value, without any demur, the
complainant/respondent no.1 miserably failed to make out any case
for the commission of offence u/s 494 RPC.

12. Section 190 of the Code of Criminal Procedure empowers the
Magistrate to take cognizance of an offence–

(a) Upon receiving a complaint of facts which constitute such
offence; or

(b) Upon a police report of such facts; or

(c) Upon information received from any person other than a Police
Officer, or upon his own knowledge, that such offence has been
committed.

13. If a Magistrate takes cognizance of an offence under clause (a), he
shall record the statement of complainant and witnesses, if any, u/s
200 Cr.P.C; and after recording the statements, he may defer

CRMC No.201/2017 Page 8 of 11
issuing notice to person against whom complaint is made and may
proceed under section 202 Cr.P.C; if he finds that no case for
issuance of notice is made out after recording statements or after
receiving the report of investigation or inquiry under Section 202
Cr.P.C., he may dismiss the complaint under section 203 Cr.P.C.; if
magistrate finds that there is sufficient grounds for proceeding, he
shall issue summon against alleged accused u/s 204 Cr.P.C.

14. While taking cognizance, it is not only contents of complaint are to
be seen, but statements recorded in support of complaint are also to
be seen. Magistrate while taking cognizance and issuing process a
detail appreciation of statements and contents of complaint are not
to be conducted. Magistrate has to only form an opinion as to
whether essentials ingredients of offence/s are made out or not. If
magistrate finds sufficient grounds to proceed, he has to issue
process against accused. While going through the contents of
complaint and statements of the witnesses; I find that there is a
categoric mention of the fact that on 21.06.2015, the second
marriage between petitioner and husband of complainant took place
in accordance with Sikh rites and custom.

15. The law with regard to quashing of complaint /criminal proceedings
is now well settled. These can be quashed at initial stage only in
order to prevent abuse of process of law or to otherwise secure the
ends of justice. The expression ends of justice and to prevent abuse
of process of any court are intended to work out either when an
innocent person is unjustifiably subjected to an undeserving
prosecution or if an ex-facie all merited prosecution is throttled at
the threshold without allowing the material in support of it. This

CRMC No.201/2017 Page 9 of 11
court while exercising the power under section 561-A Cr.P.C. does
not function as court of trial, appeal or revision. Inherent
jurisdiction has to be exercised sparingly, carefully and with great
caution. These powers cannot be used to stifle the legitimate
prosecution. This is discretionary power vested in High Court to do
substantial justice. High Court cannot examine the evidence as to
whether charge for alleged offence is made out or not. Where
accused has opportunity to advance submission before trial court
that material on record does not call for framing of charge then
High court shall not exercise power under section 561-A Cr.P.C.

16. In present case, petitioner is yet to be charge-sheeted. All the pleas
taken in the petition and those argued may be relevant for discharge
of accused, but not for quashing the Complaint at initial stage,
because all the pleas are pertaining to appreciation of facts. It is not
case of petitioner that there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and continuance
of the proceeding. I have carefully gone through the laws cited.
These are not applicable in present set of circumstances. Firstly
facts are to be seen then law is to be applied. In Lingari
Obulamma’s case (supra ) and Udha Singh’s case (supra), the law
has been made after appreciation of evidence in full trial and
conviction was made under section 494 IPC, whereas in Binoy
Kumar Gupta and Ashok Kumar Chopra’s cases (supra) facts
are quite distinguishable as in those cases there was no averments in
complaint for performance of essential ceremonies in second
marriage.

CRMC No.201/2017 Page 10 of 11

17. In view of above discussion, this petition is dismissed. Interim
stay, if any, is vacated. However, petitioner is at liberty to take all
pleas of facts or law before court below at the time of framing of
charge.

(Sanjay Kumar Gupta)
Judge
Jammu:

01.02.2019
Vijay

CRMC No.201/2017 Page 11 of 11

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