Allowed

Vikash Chandrakar and Anr. v. State Of Chhattisgarh and Anr.

Chhattisgarh HC5 Jul 2023CRMP/562/2014

Case brief

AI extract

What is this about?

High Court allowed revision challenging taking cognizance of witnesses aware of prior marriage but signing declaration for second marriage. Court held mere presence or signing without criminal conspiracy does not constitute offence under Section 120B IPC.

What did the court decide?

Order of trial court taking cognizance and subsequent revision order set aside; consequences to follow regarding petitioners only.

Vikash Chandrakar and Anr. Vs State Of… — Matrimonial and Divorce | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 562 of 2014

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Vikash Chandrakar S/o Shri Ramkumar Chandrakar Aged About 27 Years R/o Village Sirsakala Teh. Bhilai - 3, Distt. Durg C.G., Chhattisgarh

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Sanjay Chandrakar S/o Late Shri Leeladhar Chandrakar Aged About 32 Years R/o Village Sirsakala Teh. Bhilai - 3, District : Durg, Chhattisgarh

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---- Petitioners

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Versus

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State Of Chhattisgarh Through The Distt. Magistrate Raipur C.G. , Chhattisgarh

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Smt. Pyari Dadsena W/o Shri Nagendra Kumar Saxena Present R/o Village Kesra Teh. Patan Distt. Durg C.G. , District : Durg, Chhattisgarh

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---- Respondents

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For the Petitioners	: Shri Praveen Das, Advocate.
For Respondent No.1/ State	: Shri Chitendra Singh, G.A.
For Respondent No. 2	: Shri A.K. Prasad, Advocate.

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Hon'ble Shri Justice Rakesh Mohan Pandey ORDER

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05.07.2023

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The petitioners have challenged the order passed by the Learned Additional Sessions Judge, Raipur in Criminal Revision No. 211 of 2013 whereby the revision preferred by the petitioners was dismissed.

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A complaint case was filed by respondent No.2 against the petitioners and two other persons, namely, Nagendra Kumar Dadsena and Dr. Manju Sinha under Section 200 of the CrP.C. alleging therein commission of offence punishable under Sections 494, 191 and 120B read with Section 34 of the IPC. The allegations made against the accused persons were that the complainant/respondent no. 2 was married to Nagendra Dadsena on

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18.5.2006 in presence of other accused persons and there is one daughter out of their wedlock. During existence of first marriage, Nagendra Dadsena performed marriage with Dr. Manju Sinha at Arya Samaj Mandir, Raipur in presence of present petitioners where they signed a declaration form as witnesses on 11.5.2011 whereas, they were aware about the fact that the first wife of Nagendra Dadsena is still alive and marriage between them has not been dissolved. On such complaint, the statement of witnesses was recorded and thereafter, learned trial Court took cognizance of the offence on 20.5.2013 and registered the complaint case for commission of offence punishable under Sections 494, 191 and 120B read with Section 34 of the IPC against all the accused persons.

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The present petitioners preferred a revision before the learned Sessions Court against the order of taking cognizance dated 20.5.2013 passed in Criminal Case No. 471 of 2013 by the learned trial Court and the same was dismissed by the Revisional Court vide order dated 20.3.2014, which is under challenge before this Court.

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Learned counsel for the petitioners would submit that the present petitioners have been arrayed as accused only on the ground that they signed the declaration form as witnesses knowing well that the first marriage of Nagendra Dadsena is still in existence and the same has not been dissolved by the competent Court and even then they signed the declaration form. He would further submit that the mere knowledge on the part of petitioners of earlier marriage of co-accused would not tantamount to commission of offence under Section 120B of the IPC as they have not hatched any criminal conspiracy as provided under Section 120A of the IPC.

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He would also submit that there was no prior meeting of minds between the present petitioners and the other co-accused persons to commit an illegal act i.e. remarriage. Simply for being present in marriage and signing of mere declaration would not amount to any offence under Section 120B of the IPC as no criminal conspiracy can be attributed to the petitioners.

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Learned counsel for the petitioners placed reliance on the judgments of the Hon’ble Supreme Court in the case of Chand Dhawan (Smt) vs.Jawahar Lal and Others, reported in (1992) 3 SCC 317 , P.K. Narayanan vs. State of Kerala, reported in (1995) 1 SCC 142 & Baldev Singh vs. State of Punjab , reported in (2009) 6 SCC 564 . Reliance has also been placed on the judgment of Madras High Court in the case of Karuppiah Servai and others vs. Nagavalli Ammal , reported in 1981 SCC OnLine Mad 142 .

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On the other hand, learned counsel for the State would oppose the submissions made by learned counsel for the petitioners.

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Learned counsel for the complainant would submit that the petitioners were well aware of the fact that Nagendra Dadsena is a married person, his first wife is still alive and his marriage has not been dissolved even then they participated in the marriage and signed the declaration form, therefore, the offence punishable under Section 494 read with Section 120B of the IPC is made out. He has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Darshna vs. State & Ors ., reported in 2015 SCC OnLine Del 11482 and judgment of Madhya Pradesh High Court in the case of Dinesh Kumar and Others vs. Rasik Bihari Joshi and another , reported in 1999(1) JLJ 41 .

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I have heard learned counsel for the parties and perused the material available on the record.

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It is not in dispute that Nagendra Dadsena is a married person, he performed another marriage with Dr. Manju Sinha in Arya Samaj Mandir, Raipur on 11.5.2011 in presence of the petitioners, where they signed the declaration form as witnesses and this fact is not denied by learned counsel for the petitioners. The presence of a witness at the time of marriage cannot be termed as an offence and remarrying a person whosoever, having husband or wife living without having said marriage dissolved or declared void by the competent Court, amounts to commission of offence punishable under Section 494 of the IPC however a person cannot restrain another from remarrying. Therefore, mere presence of a witness at the time of marriage does not make him accomplice.

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The Hon’ble Supreme Court in the case of Chand Dhawan (Smt.) (supra) held in paragraphs 9 & 10, as under:

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“9. We are, therefore, of the view that the High Court has clearly erred in reaching the conclusion that the proceedings are liable to be quashed. In the light of the allegations made in the complaint and the materials produced in support of those allegations by the appellant before the magistrate, the issue of the process to respondents 1 and 2 who are alleged to have solemnized the second marriage during the subsistence of an earlier valid marriage of the appellant is proper and when process has been issued, the proceedings have to continue in accordance with law against these respondents 1 and 2. So far as other respondents are concerned, it may be said that they had been unnecessarily and vexatiously roped in. The allegations in the complaint so far as these respondents are concerned are vague. It cannot be assumed that they had by

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their presence or otherwise facilitated the solemnization of a second marriage with the knowledge that the earlier marriage was subsisting. The explanation of the first respondent that the second respondent has been functioning as a governess to look after his children in the absence of the mother who had left them implies that respondents 1 and 2 are living together. In this background, the allegations made against respondents 3 to 7 imputing them with guilty knowledge unsupported by other material would not justify the continuance of the proceedings against those respondents.

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In our view, the complaint before the learned magistrate is to be proceeded with against respondents 1 and 2 only.”

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In the case of P.K. Narayan (supra), paragraph 10 is relevant, which reads as under:

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“10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when

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such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation.”

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In the case of Baldev Singh (supra), paragraph 17 is relevant, which reads as under:

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“17*. Conspiracy is defined in Section 120-A IPC to mean:

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"120:A. Definition of criminal conspiracy.―When two or more

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persons agree to do; or cause to be done.―

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(1) an illegal act, or

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(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

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Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

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Explanation .―It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."

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An offence of conspiracy which is a separate and distinct offence, thus, would require the involvement of more than one person. Criminal conspiracy is an independent offence. It is punishable separately, its ingredients being:

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(i) an agreement between two or more persons;

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(ii) the agreement must relate to doing or causing to be done either

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(a) an illegal act;

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(b) an act which is not illegal in itself but is done by illegal

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means.

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It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a

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finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must be borne in mind that meeting of the mind is essential; mere knowledge or discussion would not be sufficient.”

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One of the judgments cited by the learned counsel for respondent No.2 wherein it is held that witnesses who were present at the time of marriage are liable to be prosecuted under Section 494 read with 120B of the IPC, however, similar issue is involved in that judgment but same is not binding upon this Court when there is a judgment on identical issue passed by the Hon’ble Supreme Court.

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Taking into consideration the law laid down in above discussed authoritative pronouncements, the material available on record and the allegations made against the petitioners, I am inclined to allow this petition. The order passed by the learned trial Court for taking cognizance and the subsequent order passed in Criminal Revision are hereby set aside. Consequences to follow with regard to the petitioners only.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Nimmi

Vikash Chandrakar and Anr. v. State Of Chhattisgarh and Anr.

Case brief

What is this about?

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Vikash Chandrakar and Anr. v. State Of Chhattisgarh and Anr.

Case brief

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