—
Karnataka High Court
Yeshwant @ Yeshwantraya And Ors vs Malashree on 2 April, 2024
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON’BLE MR. JUSTICE C M JOSHI
CRIMINAL PETITION NO.200840 OF 2023 (482)
BETWEEN:
1. YESHWANT @ YASHWANTRAYA S/O SHIVARAJ PATIL,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O VILLAGE KADAGANCHI, TQ. ALAND,
DIST. KALABURAGI-585106.
2. SHIVARAJ @ YASHWANTRAYA PATIL
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O VILLAGE KADAGANCHI, TQ. ALAND,
DIST. KALABURAGI-585106.
Digitally signed by
KHAJAAMEEN L 3. SMT. BHAGARATI W/O SHIVARAJ PATIL,
MALAGHAN AGE: 55 YEARS, OCC: HOMEMAKER,
Location: HIGH R/O VILLAGE KADAGANCHI, TQ. ALAND,
COURT OF
KARNATAKA DIST. KALABURAGI-585106.
4. SANJEEVKUMAR S/O SHIVARAJ PATIL,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O VILLAGE KADAGANCHI, TQ. ALAND,
DIST. KALABURAGI-585106.
5. SMT. KAVITA W/O SANJEEVKUMAR,
AGE: 30 YEARS, OCC: CUK EMPLOYEE,
R/O VILLAGE KADAGANCHI, TQ. ALAND,
DIST. KALABURAGI-585106.
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6. SMT. POOJA W/O YASHWANTRAYA,
AGE: 23 YEARS, OCC: HOMEMAKER,
R/O VILLAGE KAMANHALLI, TQ. ALAND,
DIST. KALABURAGI,
NOW R/O VILLAGE KADAGANCHI,
TQ. ALAND, DIST. KALABURAGI-585106.
7. LAXMAN M. POLICE PATIL
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O VILLAGE KAMANHALLI, TQ. ALAND,
DIST. KALABURAGI-585106.
8. MAHADEVI W/O LAXMAN POLICE PATIL,
AGE: 48 YEARS, OCC: HOMEMAKER,
R/O VILLAGE KAMANHALLI, TQ. ALAND,
DIST. KALABURAGI-585106.
…PETITIONERS
(BY SRI NANDKISHORE BOOB, ADVOCATE)
AND:
SMT. MALASHREE
W/O YASHWANT @ YASHWANTRAYA PATIL,
AGE: 27 YEARS, OCC: HOMEMAKER,
R/O PLOT NO. 15, MAIN ROAD, LAXMI NAGAR,
NEAR ASHA JYOTI SCHOOL, SEDAM ROAD,
KALABURAGI-585106.
…RESPONDENT
(BY SRI RAVI B. PATIL, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH ANNEXURE-D, THE ORDER
DATED 08.11.2022 IN C.C.NO.20103/2022 WHICH IS PENDING
BEFORE HON’BLE VTH ADDITIONAL CIVIL JUDGE AND JMFC
COURT, KALABURAGI FOR THE OFFENCES UNDER SECTIONS
494 AND 420 OF IPC AGAINST THE PETITIONERS AND
PROCEEDING OF CASE AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
28.03.2024 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioners who are the accused Nos.1 to 5,
8 to 10 in C.C.No.20103/2022 (Private Complaint
No.418/2022) before the V Additional Civil Judge and
JMFC, at Kalaburagi, are before this Court seeking to
quash the proceedings under Section 482 of Cr.P.C.
02. The petitioners along with the accused Nos.6
and 7 were alleged to have committed the offences
punishable under Sections 420 and 494 read with Section
149 of IPC with a common object. The factual matrix is
that the complainant is legally wedded wife of accused
No.1 and the accused Nos.2 and 3 are the parents of the
accused No.1. The accused No.8 is the second wife of
accused No.1. The other accused are brother and sister in
laws and the relatives of accused Nos.1 and 8. It was
alleged that the complainant was married to accused No.1
on 21.06.2012 at Kalaburagi. After the marriage, they
lived as husband and wife. The accused No.1 was working
as a Typist at Central University Kalaburagi. Thereafter,
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there was rift between the complainant and the accused
No.1. The accused No.1 filed a petition under Section 9 of
the Hindu Marriage Act and the complainant had filed a
petition for divorce. However, at the instance of the elders
the divorce petition has been withdrawn. Thereafter, again
cordial relationship was interrupted and as such a divorce
petition was filed by her, which was pending before the
Family Court, at Kalaburagi.
03. When the things stood so, on 10.01.2021, when
two of the friends of the family of the complainant went to
Ramtirth Mandir, Aland road, Kalaburagi, they found that
the accused Nos.1 to 10 were present and the accused
No.1 had married the accused No.8. The accused Nos.2 to
7, 9 and 10 had performed the marriage. The said two
witnesses though requested the accused not to go ahead
with the marriage, they were threatened and later, nearly
after a couple of months, they informed the same to the
complainant. Then she visited the house of the accused
Nos. 1 to 3 and found that the accused Nos.1 and 8 were
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living as husband and wife. Then she lodged a complaint
to the learned Magistrate alleging the offence punishable
under Sections 420 and 494 read with 149 of IPC.
04. The leaned Magistrate recorded the statement
of the complainant and the witnesses and took cognizance
and issued process to the accused for the above
mentioned offences. Being aggrieved by the same the
petitioners are before this Court.
05. On issuance of notice, the respondent has
appeared through her counsel.
06. Heard the arguments of both sides and perused
the records.
07. The learned counsel appearing for the
petitioners submits that this Court in
Crl.P.No.200071/2023 dated 05.07.2023 has allowed the
petition by accused Nos.6 and 7 and quashed the
proceedings against them. It is submitted that the view
taken by this Court is that Section 494 of IPC applies only
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to the spouses, but not to the others. It is contended that
the allegation of contacting the second marriage is against
the accused No.1 and accused No.8; and therefore, the
taking of cognizance against all the petitioners is
impermissible.
08. Per contra, the learned counsel for the
respondent would submit that when there is averment in
the complaint and it is supported by the sworn statement
of the complainant as well as one witness. There is no
reason to disbelieve the same and to quash the
proceedings. It is submitted that Crl.P.No.200071/2023
was only pertaining to accused Nos.6 and 7 and in the
present proceedings, the accused Nos.1 and 8 have also
sought for quashing the proceedings. The specific
allegation being against the accused Nos.1 and 8, the
present petition is bereft of any merits.
09. It is relevant to note that while deciding the
Crl.P.No.200071/2023, the case of the accused Nos.6 and
7 alone was considered by this Court and then it opined
that the Section 494 of IPC applies only to the accused
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Nos.1 and 8 who are contracting parties of the marriage
and allowed the petition. Whereas in the present
proceedings such contracting parties i.e., accused Nos.1
and 8 are also arrayed as petitioners, therefore, the
reasoning given by the Court in Crl.P.No.200071/2023
does not come to the benefit of the petitioners.
10. The sworn statement of PWs.1 and 2 discloses
that she was informed by the PW.2 and one Kashinath that
they had seen performance of the marriage of the accused
Nos.1 and 8 on 10.01.2021 at Ramtirth Mandir,
Kalaburagi. Thereafter, the PW.1 and her father, along
with Baburao went to the house of the accused No.1
where accused Nos.2, 4, 5 and 8 were present. On
enquiring, they refused and asked to the complainant to
get her remedy in the Court. She states that the petition
for divorce is still pending as on 27.09.2022. The PW.2
states that he had seen the marriage of the accused Nos.1
and 8 and all the accused were present in the said
marriage. He also states that he had accompanied
complainant and her father to the house of the accused.
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11. In the complaint there is clear averment that all
the accused were present at Ramtirth Mandir and they
have witnessed the marriage. The complaint narrates
when the Baburao and Kashinath had questioned the
complainant, they were threatened by the accused.
12. The next question would be whether these
accused had a common object of cheating and committing
offence of bigamy. What is to be noted is that though
Section 149 is invoked by the Trial Court, in effect, it
appears that it was abetment of the offence. It is not
known whether all accused had common object as
required under Section 149 of IPC to commit the offence
under Section 494 of IPC. But however, the offence under
Section 420 of IPC could not have been invoked since
there is no such inducement to the complainant.
Therefore, applying the provisions of Section 420 of IPC by
the Trial Court is not sustainable in law. The sworn
statement and complaint do not constitute an offence of
cheating as defined Section 415 of Cr.P.C., punishable
under Section 420 of IPC.
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13. The Hon’ble Kerala High Court in the case of
Govindan Nambiyar vs Rohini1, had an occasion to deal
with a similar matter. In Para No.7, Justice Padmanabhan
(as the then was) has observed as below :
“7. 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 Penal Code, 1860. It involves instigating
a person to do a thing, engaging in conspiracy
or intentionally aiding by any act or illegal
omission, the doing of a thing. Instigation may
involve wilful misrepresentation or wilful
concealment of material facts which the abetor
is bound to disclose. They may be vitiating
circumstances. But aiding involves only doing of
1
1985 SCC OnLine Kerala 243
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CRL.P No. 200840 of 2023anything 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 abetor 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.
Without knowledge or intention there can be no
abetment and the knowledge and intention must
relate to the crime and it is shared by the
abettor and the principal offender. It is not a
case in which the principal offender is misled to
do a thing not knowing that it is an offence.
Where a person who is present at the scene of
occurrence either encourages the commission of
the offence or where he is under a legal
obligation to prevent commission of the offence
and does not do so he is said to abet. Abetment
could include abetment by instigation, abetment
by conspiracy or abetment by aiding.”
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14. Thus, it was opined that it is the abetment of an
offence, which can be taken note of. In the case on hand,
the sworn statement of the complainant and the witness
do not disclose that the accused Nos.2 to 7 and 8 to 10
had abetted the offence. It was simply stated that they
were present at the time of marriage.
15. The Apex Court in the case of Kanwal Ram
and others vs. Himachal Pradesh Administration 2
held that an offences under Sections 494 and 109 of IPC is
permissible when it is shown that the relatives of the
offenders had also instigated or abetted bigamy.
16. Further, in a recent decision in the
case Shrawan Singh v. State of Rajasthan 3, after
considering the views of many High Courts and also of the
Apex court in the case of Joseph Shine Vs Union of
India4 has observed as below:-
2
AIR 1966 SC 614
3
2023 SCC OnLine Raj 1247
4
(2019) 3 SCC 39
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“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.
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37. At the cost of repetition, this Court thus
finds that the ambit of bigamy is narrow and
limited to the erring spouses 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
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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 494IPC, it
is unable to accept the proposition that a
person may abet the offence to commit the
offence of bigamy.”
17. In that view of the matter, the ground that all
these petitioners can be prosecuted for the offence under
Section 494 of IPC, cannot be sustained. As noted above,
the offence alleged of Section 494 of IPC against accused
Nos.1 and 8 in no way can be quashed, when it is
demonstrated by statements of PW.1 and 2. Though there
are divergent opinions regarding the applicability of
section 109 of IPC to offence u/s 494 of IPC, the case on
hand shows that no specific roles of the accused No. 2 to
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5, 9 and 10 are stated in the complaint. Mere presence
cannot make them to suffer trial for offence u/s 109 or
149 of IPC.
18. However, the prosecuting the accused Nos.2 to
5 and 9 and 10 cannot be sustained. Hence, the petition is
to be allowed in part. Accordingly, the following;
ORDER
The petition is partly allowed.
The proceeding in C.C.No.20103/2022 (Private
Complaint No.418/2022) before the V Additional Civil
Judge and JMFC, at Kalaburagi, as against the accused
Nos.2 to 5, 9 and 10, is hereby quashed.
Sd/-
JUDGE
KJJ
List No.: 1 Sl No.: 41
CT:PK