Dismissed

Beer Singh and Others v. Rekha Devi and Others

J&K HC20 Feb 2023CRM(M)/305/2022

Case brief

AI extract

What is this about?

Petitioners sought quashing of criminal proceedings alleging bigamy and conspiracy under Section 482 CrPC. The court rejected the plea of parity, holding that as the petitioners organized the second marriage, prima facie allegations were valid and justice demanded trail.

What did the court decide?

Petition for quashing of criminal proceedings dismissed; petitioners directed to face trial in court below.

Beer Singh and Others Vs Rekha Devi and Others — Matrimonial and Divorce | J&K HC (2023)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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CRM (M) No. 305/2022 Crlm No. 653/2022

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Reserved on: 16.02.2023

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Pronounced on: 20.02.2023

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Beer Singh & Ors.

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…Petitioner (s)

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Through: Ms. Garima Gupta, Advocate Vs. Rekha Devi & Ors.

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…Respondent(s) Through: Mr. Vikas Jain, Advocate Mr. Krishna Raj, Advocate Mr. Parveen Kumar, Advocate .

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CORAM: HON’BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE

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JUDGMENT

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1. Petitioners through the medium of this petition under Section 482 CrPC seek quashment of the criminal proceedings in a complaint titled ‘Rekha Devi Vs. Jia Lal & Ors’ pending disposal before the Court of learned Judicial Magistrate (Munsiff) Bani, (hereinafter called Trial Court for brevity) in which process under Section 494/109 and 120-B RPC has been issued against them besides other accused. The proceedings have been sought to be quashed for the reason that the petitioners had no role whatsoever, in the 2^nd marriage of accused/respondent Jia Lal with Reva Devi respondent No. 2 as alleged by respondent No. 1/complainant Rekha Devi that her husband contracted 2^nd marriage with her and that the petitioners have indulged in a criminal conspiracy for the commission of

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offences of bigamy. It has been alleged that it is a misuse of the process of court and the proceedings are required to be quashed to secure the ends of justice.

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2. Pursuant to notice the objections have been filed by the respondent No. 1/complainant asserting therein that she is legally wedded wife of respondent no. 4 Jia Lal who during the subsistence of her marriage illegally contracted a second marriage with respondent no. 2 Reva Devi in connivance with the petitioners. It was submitted that respondent No. 4 Jia Lal committed offence of bigamy in connivance with petitioners under a criminal conspiracy, as such, it cannot be said that the process of Court is being misused in any manner rather it is in the interest of justice that the petitioners who committed the offences against the answering respondents are dealt with in accordance with law and punished to be brought to justice.

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3. Respondent No. 1 filed a complaint in the Trial Court on 19.02.2010 against 12 persons including Jia Lal and the petitioners herein asserting that she had got married to the respondent –Jia Lal as per Hindu rites and ceremonies in village Mandhota Tehsil Bani on 25.06.2004 and out of their wedlock a son was born on 01.01.2006, however, her husband neglected complainant and her son and refused to pay the maintenance and subjected them to cruelty on the demands of dowry, as he wanted to contract 2^nd marriage with respondent-Reva Devi. It was alleged that during subsistence of her marriage, her husband had contracted 2^nd marriage with said Reva Devi about a month back with the help of other co-accused including petitioners, as such, they have committed offences punishable under

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sections 494/109/120-B RPC deliberately and intentionally. It was prayed to punish them for the commission of these offences.

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4. The Learned Judicial Magistrate after recording statement of complainant and her witness Dharam Chand, took cognizance of the commission of offences punishable U/Ss 494/109/120-B against all the accused including the petitioners, vide order dated 19.02.2010

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5. Aggrieved of this order the petitioners have filed the instant petition Under Section 482 CrPC seeking to quash the complaint and the proceedings thereof.

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6. Learned counsel for the petitioners argued that this court already in 561-A No. 44/2010 titled ‘Tilak Raj & Anr vs. Rekha Devi & Ors’ and in CRMC No. 45/2014 titled ‘Kanta Devi vs. Rekha Devi’ has been pleased to quash the proceedings qua the petitioners therein and on the bedrock of parity, the petitioners are also entitled to the same relief and prayed that the petition be allowed. He has further argued that the petitioners were just alleged to have attended the Barat of the main accused and therefore, cannot be said to have been involved in the commission of any offence for which process have been issued against them in the complaint. Learned counsel for the petitioners has relied upon a judgment of the Supreme Court reported as 1992

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(3) RCR 534 titled Smt. Chand Dhawan v. Jawahar lal & Ors. wherein it has been held that the person who has participated in the alleged second marriage cannot be held liable for any criminal action. It was finally prayed that the proceedings of the complaint against the petitioners be quashed in the interest of justice as it is sheer abuse of process of court at the hands of the complainant/respondent No. 1.

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7. Learned counsel for the respondents, on the other hand, argued that

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the petitioners herein cannot seek the parity with other accused for the simple reason that the petitioner No. 1 Beer Singh, petitioner No. 2 and petitioner No. 3 are father, sister and brother respectively of the said Reva Devi , therefore, all the petitioners cannot be said to be Baraties simply to have attended the marriage but as guardian of said Reva Devi had actually participated in settling and organizing the marriage of Reva Devi with respondent/accused Jia Lal, husband of the complainant.

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8. He has relied upon a judgment passed by Hon’ble Supreme Court reported as 1990 (Supp) SCC 686 titled Dhanalakshmi v. R.Prasanna kumar & Ors. wherein it has been held that it is for the complainant to substantiate the allegations by evidence at a later stage. In the absence of circumstances to hold prima facie that the complaint is frivolous when the complaint does disclose the commission of an offence, there is no justification for the High Court to interfere under Section 482 CrPC.

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9. Hon’ble Apex Court in Pepsi Food Ltd. Vs. Special Judicial Magistrate & Ors reported as (1998) 5 SCC 749 relying upon the ratio laid by it in Bhajan Lal’s case observed as under:

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“22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these

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provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers.”

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10. The Hon’ble Apex Court in a case titled State of Andhra Pradesh vs.Gourishetty Mahesh & Ors . reported as (2010) 11 SCC 226 has held that though the powers possessed by the High Court U/S 482 CrPC are wide, however, such powers requires care and caution in its exercise. Sound principle and the inherent powers should not be exercised to stifle a legitimate prosecution. It was clarified that for the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it was open to the High Court to quash the same in exercise of inherent powers under Section 482 CrPC.

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11. Applying the principles laid down by the Hon’ble Apex Court for invoking inherent jurisdiction U/S 482 CrPC by the High Court to the facts of the case between the parties it is found that the complaint

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of commission of abetment of bigamy under a criminal conspiracy, cannot be said to be vexatious or of a false implication against the father, sister and brother of the second wife of respondent Jia Lal husband of complainant/respondent No. 1, who was alleged to have committed the offence of bigamy punishable U/S 494 RPC.

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12. The petitioners plea that complaint against them be quashed on the basis of parity with other accused, qua whom, complaint has been quashed cannot be accepted for the simple reasons that petitioners not only attended the second marriage of the husband of complainant but they are alleged to have actually participated in organizing and solemnizing it, being father, sister and brother of second wife.

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13. Viewed from any angle it cannot be said that the complaint against the petitioners is in any way misuse of the process of court or it may be required to be quashed to secure the ends of justice, rather it is in the interest of justice that the petitioners as accused face the trial before court below on sound allegations made by the complainant.

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14. For the foregoing reasons and observations made hereinabove, this Court is of the opinion that the petition for want of merit and substance deserves to be rejected. Ordered accordingly.

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15. Petition alongwith interim application(s) is disposed of as dismissed.

(MA CHOWDHARY)

JUDGE

Jammu

20.02.2023

Mujtaba