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Prasanna Kumar-vs-Dhanalaxmi And Ors. on 16 February, 1988

Madras High Court Prasanna Kumar-vs-Dhanalaxmi And Ors. on 16 February, 1988
Bench: P Sethuraman

ORDER

1. The petitioner is the first accused in C.C. No. 13217 of 1987 on the file of the X Metropolitan Magistrate, Egmore, Madras. This is a petition praying to call for the records in C.C. No. 13217 of 1987 on the file of the X Metropolitan Magistrate, Egmore, Madras, and to quash the said proceedings.

2. According to the petition, the first respondent Dhanalaxmi has filed the complaint against the petitioner and five others for offences under sections 494, 496 and 498-A, I.P.C. alleging that she had married the petitioner at Thanjavur on 29-4-1979, and there are two issues a girl aged about 9 years and a boy aged about 5 years, and that she lived with the petitioner until the year 1982, and their last residence was at No. 54 Vellala St. Ayyanavaram, Madras, and she was finally deserted in March 1983. Further, according to her, the petitioner demanded dowry by way of jewels and cash before the marriage and after the marriage and also demanded scooter, television, fridge, etc., and she was treated cruelly. She filed a petition for restitution of conjugal rights in O.P. 426 of 1983 and it was withdrawn and later O.P. 340 of 1985 was failed on the file of the City Civil Court, for divorce and while the case was pending, she had occasion to go to petitioner’s house with her father and his friends as suggested by the Judge of the City Civil Court, Madras, to talk about the compromise and on that occasion that petitioner was not in the house but the second respondent herein was present in the house and when enquired she informed that she is the wife of the petitioner and on further enquiries the first respondent herein learnt that the petitioner married the second respondent herein and the marriage was performed in the presence of the other accused and some people close to the accused. The second respondent also delivered a child and the birth of the child had been concealed by giving false name and address. In the sworn statement she has mentioned about the demanding of the dowry six months after the marriage. Further it has been mentioned in the complaint that the first respondent came to know that the marriage was performed secretly.

3. The learned Magistrate has taken cognisance of the offences under S. 498A, 112, 114, 120 read with Section 34 I.P.C. and according to the petitioner the complaint and the sworn statement did not disclose any offence. The complaint has been failed since she has filed the petition for divorce in the year 1985 on the grounds of desertion and cruelty and the complaint has been filed out of spite and under such circumstances, it has been prayed that the entire records of the case has to be called for and the proceedings to be quashed.

4. The petitioner who is A-1 in the case has come forward with this petition under section 482 Cr.P.C. soon after the receipt of the summons. The petitioner is working as a Sub-Inspector in the office of the Commissioner of Police, Madras City at Egmore. A perusal of the copy of the complaint discloses that the complaint had been given for alleged offences under sections 494, 496 and 498-A I.P.C. against A-1 (the petitioner herein) and under sections 112, 114 and 120 I.P.C. against A-1 to A-6 read with Sections 120-B and 34 I.P.C. Before proceeding further it could be pointed out that as regards the offence under S. 496 I.P.C., rightly it is alleged that it was committed by A-1. But at the same time it is to be noted that certainly the said offence, even according to the complaint, may not be against the complainant, the first respondent, perhaps it is meant that the said offence had been committed against the second respondent herein whom the petitioner has been alleged to have married. If it is the case of the first respondent-complainant that the petitioner has committed the offence punishable under S. 496 IPC, with regard to the alleged marriage between the petitioner and the second respondent, the complaint for the offence under S. 494 IPC cannot be maintained since S. 490 IPC applies to cases in which a ceremony is gone through which would in no case constitute a marriage, and in which one of the parties is deceived by the other into the belief that it does constitute a marriage or in which effect is sought to be given by proceeding to some collateral fraudulent purpose. The essence of S. 490 IPC is that there should be a dishonest or fraudulent abuse of marriage ceremony and for this complaint by the person aggrieved is necessary. If it relates to the marriage of the petitioner with the second respondent the complaint by the first respondent is not maintainable.

5. As regards S. 498-A it is to be pointed out that it is a new penal provision added in the Penal Code by the Criminal Law (Second Amendment) Act 1983, and it has come into force on 25-12-1983. According to the allegations in the complaint the first respondent complainant was deserted by the petitioner in the month of March 1983. Under such circumstances whatever be the allegations it cannot at all be stated that the said penal provision had been given retrospective effect. Accordingly the complaint for the alleged offence under S. 498A IPC, cannot be maintained. Even otherwise the allegations therein may not also be said to be constituting the offence under the Dowry Prohibition Act 1961. In paragraph 10 of the complaint, it has been mentioned that as demanded by the first accused (the petitioner herein) and his parents, the complainant’s father in spite of difficulties gave 25 sovereign of jewels, Rs. 3000/- in cash and number of movables like vessels, furnitures, dresses etc., in addition to minor chain and a watch, for the accused, and the marriage was celebrated on a grand scale at a cost of Rs. 12,000/-. Under the Dowry Prohibition Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly at or before or after the marriage as consideration for the marriage and it excludes presents made at the time of marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles unless they are made as consideration for the marriage of the parties. Having regard to allegations in the complaint itself in paragraph 8 that the marriage was arranged by the parents and elders and solemnised according to Hindu religious customs and rites and out of the wedlock two children were born and at the time of marriage, A-1 was employed as a Ticket Examiner in Southern Railway and later he was selected as Sub-Inspector of Police and went for training and after such training he was posted as Sub-Inspector of Police at various police stations and wherever he was posted the complainant accompanied him as his dutiful wife and lived with him, it cannot be stated that the presents made at the time of marriage including cash were made as consideration for the marriage between the petitioner and the first respondent. Even assuming for a moment that there had been such an offence under the Dowry Prohibition Act, the said offence being punishable for six months only, a complaint in the year 1987 may not be maintainable since S. 488 Cr.P.C. may come into play. Accordingly the offence under S. 498-A IPC as alleged in the complaint also cannot be maintained.

6. Now coming to the main offence under S. 494 I.P.C. there is no dispute between the petitioner and the first respondent-complainant that their marriage is subsisting and the petition filed by the petitioner for divorce against the first respondent in O.P. 340 of 1985 is pending disposal on the file of the City Civil Court, Madras. Accordingly the marriage between the petitioner and the first respondent is subsisting. While that is so, if the petitioner has married the second respondent it can amount to an offence under S. 494 IPC.

7. In paragraph 16 of the complaint it has been mentioned that O.P. 340 of 1985 came up for hearing before the 6th Assistant Judge, City Civil Court, Madras, and the learned Judge was pleased to suggest to the complainant and the first accused (the petitioner) that they should compromise the matter and accordingly on 31-8-1986 the complainant accompanied by her father and Mr. Ratinasami Naidu and Mr. T. P. Gnanasekaran two impartial well wishers of both the families went to the residence of the first accused at No. 12-A Rakkhappa Mudali St. First lane, Mylapore, Madras-4 to meet the first accused and effect a compromise. The first accused was not at home and there was a lady in the residence of A-1 and on enquiry the lady told the complainant’s father that her name was Rajakumari and she was the wife of the first accused, having married him in the month of June 1986 at Thanjavur. On verification the complainant came to know that the said Rajakumari is the daughter of A-5 and A-6 and A-1 and A-2 were living together as husband and wife in that house and she further came to understand that the marriage between them was performed secretly in the presence of other accused and some people close to the accused. Apart from the said allegations there is no mention as to from whom the complainant came to know about the marriage between A-1 and A-2 and at which place in Thanjavur and on what date the marriage took place. In the sworn statement the first respondent has mentioned that when they went, they happened to see Rajakumari and when enquired she replied that she is the wife of the first accused and on enquiry in the neighbourhood she came to know that they had married about a year ago secretly and the other accused were abetting the marriage. At this place it is to be pointed out though the complainant and her father are alleged to have gone to the house of the petitioner herein at No. 12-A Rakkiappa Mudali St. first lane, Mylapore, Madras-4 on 31-8-1986 and they saw the second respondent in the house, even assuming that it could have taken some time to make enquiry about the marriage, one fails to understand as to why the complaint had been given on 29-10-1987. It is also to be pointed out that in the complaint, which had been given long after, the details of the place where exactly the marriage took place and on what date the marriage took place have not been mentioned. Apart from mentioning that the marriage was performed secretly in the presence of the other accused and some people close to the accused there is no indication whatsoever as to who had witnessed the occurrence. No doubt learned counsel for the first respondent complainant submitted that one Pakirisami and another Ramkrishnan witnesses 1 and 2 respectively are the witnesses who witnessed the marriage. Even the said fact of their witnessing the marriage had not been mentioned in the complaint. There is also no mention in the complaint in what manner the marriage took place. Admittedly, the parties are Hindus. While so the necessary ingredients of the offence under S. 494 I.P.C., have to be mentioned and it is to be pointed out that there should be an allegation that the accused gone through a form of marriage recognised by law and the second respondent whom the first accused is alleged to have married and the parents of the second respondent had knowledge of such marriage of the petitioner with the complainant. It is idle to contend that having regard to the fact that A-1 is already married to the complainant the marriage naturally was performed secretly without mentioning in what form the marriage took place. In a Bigamy case, the second marriage as a fact, has to be established, and the admission of the marriage by the accused is not evidence of it for the purpose of proving marriage as laid down in the case reported in Kanwalram v. Him Pra Administration . Thus, taking into consideration the complaint filed by the first respondent it has to be stated that the allegations made in the complaint with regard to the second marriage by the first accused (the petitioner herein) with the second accused (the second respondent herein) taken along with the sworn statement did not disclose the essential ingredients of the offence under S. 494 I.P.C. and on the allegations made in the complaint no prudent person could reach a conclusion that there is sufficient ground for proceeding against the accused. It has been laid down by the Supreme Court in the case reported in Sharda Prasad v. State of Bihar,

that it is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under S. 482 Cr.P.C. to quash the order passed by the Magistrate taking cognizance of the offence.

8. In the petition it has been stated that the complaint had been filed for the offences under sections 494, 496 and 498-A I.P.C. and the learned Magistrate has taken cognisance of the alleged offences under Ss. 498-A, 112, 114 and 120 read with S. 34, I.P.C. Pointing out such allegation in the petition, the learned counsel for the first respondent-complainant contended that the said averment is not proper and the complaint had been given for the offences under sections 494, 496 and 498-A, I.P.C. against A-1, and under sections 112, 114, 120 IPC against A-1 to A-6, read with S. 34 IPC. The petitioner along with the petition has also submitted the summons issued to him and in the said summons the offences under sections 498-A, 112, 114, 120 and 34 IPC only have been mentioned. Therefore, the petitioner has come for ward with such an allegation, At this place it may also be pointed out that absolutely no allegation had been made to make out an offence under S. 120 I.P.C., much less to make out the offence under S. 120-A punishable under section 120-B, I.P.C. Having regard to the discussion above it can be unhesitatingly stated that the complaint as discussed above does not at all make out the case against the petitioner or for that matter against the other accused for the main offences mentioned in the complaint, viz., under sections 494, 496 and 498-A. While that is so, abetting of such offences or concealing design to commit themselves an offence of conspirary cannot be said to have been made out. It is also to be pointed out as to how the complaint had been instituted making an allegation against A-1 (the petitioner herein) regarding the offence under S. 498-A which could be attributed to him or at best against his parents also and not against A-2 and her parents along with the offences under sections 494 and 496 I.P.C. In this regard also it has to be stated that the complaint suffers from such illegality with regard to misjoinder of parties and offences. Learned counsel for the petitioner besides submitting the decisions mentioned above, also relied upon the decisions reported in (1) Nagawwa v. V. S. Nonjalgi, , and (2) Varadachari v. C. S. Shanthi, 1987 Mad LW

(Cri) 84 : (1987 Cri LJ 1048). Thus, on a careful consideration of the complaint and the sworn statement I hold that the allegations made therein do not make out a case of the various offences alleged against the petitioner as well as other accused concerned in the case. ‘Accordingly this’ petition has to be allowed and the proceedings have to be quashed not only against the petitioner but also against the other persons shown as accused therein. In the result the petition is allowed and the proceedings in C.C. 13217 of 1987 on the file of the X Metropolitan Magistrate Egmore, Madras are quashed not only against the petitioner herein but also against the other persons shown as accused in the said proceedings.

9. Petition allowed.

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