C S VARADACHARI Vs. C S SHANTI

JUDGEMENT

(1.) Accused 3 to 6 in C.C. 376 of 1983 on the file of the Judicial First Class Magistrate No. 1, Madurai, have preferred this petition to quash the said proceeding against them under S.482, Cr.P.C. The respondent herein filed a complaint against these petitioners and four other accused on the following allegations. The first accused is the husband of the complainant. Accused 3 and 4 are the parents of the first accused. The sixth accused is the sister of the complainant's mother. The fifth accused is the husband of the sixth accused. Accused 7 and 8 are the parents of the second accused. The complainant married the first accused on 22-8-1975 according to the caste custom and the said marriage is subsisting. There were misunderstandings between them and at the instigation of accused 3 to 6, the first accused was compelling her to give consent for his second marriage. On 25-5-1983 the first accused left the house without informing the complainant and when she questioned accused 3 and 4, they refused to divulge any information about his address. The complainant's father came to know that the first accused married the second accused at the instigation of accused 3 to 8 and in their presence on 26-5-1983, at about 11 a. m. in the house of the second accused, the first accused tied thali around the neck of the second accused and they exchanged garlands. Witnesses 1 and 2 cited in the complaint at the invitation of the first accused attended the marriage and they were informed that the relationship between the complainant and the first accused was severed. Accused 3 to 8, after the thali was tied, threw Akshathai (holy rice) and blessed the couple and gave presents. Hence, she has preferred the complaint. Her sworn statement was recorded. The complaint was taken on file against the first accused under Sec. 494, IPC and against the other accused under S.494 read with S.114, IPC. Aggrieved by the same, accused 3 to 6 have filed this petition to quash the proceeding on the following grounds : According to the petitioners even if the entire allegations in the complaint as well as the sworn statement are true, they would not constitute an offence of abetment of bigamy against these petitioners. It is further submitted that under S.114, I.P.C. abetment of the offence is not prior to the time the offence takes place but the abettor also helps in the commission of the offence. It is further submitted that the complainant has no personal knowledge of the bigamy marriage and the role played by any of the accused and that none of the witnesses cited in the complaint has been examined under S.200, Cr. P.C. before even the complaint was taken on file. Since there is no legal (sic) on record for application of judicial mind at the time of taking the complaint, the order passed by the Magistrate is without jurisdiction and is liable to be quashed. It is further submitted that the said complaint has been filed against those accused due to enmity and with ulterior motive to harass them by abuse of the process of court.

(2.) At the outset, it is to be found out whether the allegations levelled in the complaint and the sworn statement do constitute an offence of abetment under S.114, I.P.C. and whether there is any legal evidence to support the same. In the complaint it is alleged that due to enmity between the complainant and accused 3 to 6, the first accused, at their instigation, was compelling the complainant to give her consent, for some time prior to the occurrence, for remarriage. Another allegation made in the complaint is that the complainant came to know that the father of the complainant was informed by the first witness cited in the complaint that accused 1 and 2 celebrated the second marriage at the instigation of accused 3 to 8, and in their presence the marriage was celebrated in the house of the second accused by tying thali and exchanging garlands and that accused 3 to 8 after marriage threw holy rice and blessed the couple and also gave presents.

(3.) Learned counsel for the petitioners, Mr. T. S. Arunachalam submitted that even accepting the allegation that the first accused was compelling the complainant to give her consent to marry a second wife sometime prior to the occurrence, it would not mean that the petitioners abetted the commission, of the offence of bigamy of the first accused marrying the second accused on the date of the alleged marriage. At best, it would be referable to a stage of preparation and at no stretch of imagination any offence is said to have been perpetrated and in any event it is not referable to any marriage between accused 1 and 2. Next it was submitted that the first accused is alleged to have left the house on 25-5-1983, and when the complainant enquired the parents of the first accused about the first accused, they refused to give details of his whereabouts. It is submitted by the learned counsel for the petitioners that the mere fact that they refused to answer the enquiries made by the complainant about the whereabouts of the first accused after he left the house would not mean that they committed the offence of bigamy, namely, the second marriage with the second accused. Next it was submitted by the learned counsel for the petitioners that the only two rituals alleged to have been performed at the marriage are tying of thali and exchanging garlands and no other rituals. As such, the question of the other accused assisting them in the rituals does not arise. It is also submitted by the learned counsel that the mere fact that the accused were present at the marriage, blessed the couple and gave them presents would not mean that they abetted the offence. Even in the sworn statement, the only overt act attributed to them is that they blessed the couple and gave presents at the time of marriage. According to the learned counsel, even these allegations are only hearsay, since the witness who is said to have given the information was not examined. Though her father was present at the time of giving the complaint, he was also not examined. According to the learned counsel, the materials now placed before court are only hearsay evidence and even accepting them, they do not constitute the offence of abetment.