1.This Petition is one under Section 482 of the Criminal Procedure Code ('the Code') by the petitioners who were accused Nos. 1 to 8 in C.C. No. 672/1984 on the file ofthe Prl. J.M.F.C., Hukkeri, is directed against the order dated 3rd December, 1984, passed by the I Additional Sessions Judge, Belgaum, in Criminal Revision Petition No, 86 of 1984 dismissing the Revision Petition and confirming the order dated 15th June, 1984, passed by the Pr1. J.M.F.C. Hukkeri, directing issue of process against the petitioners for an offence punishable under Section 494 R/W Section 34 I.P.C.
2. I shall refer to the parties in the course of this order, for the sake of convenience, as they were arrayed in the Court of the first instance.
3. The matter arises in this way :
The complainant Shanta (respondent in this petition) filed a private complaint before the Prl. J.M.F.C., Hukkeri, alleging that she was the legally wedded wife of Babu Tayappa Appugol (A- 1) and during the subsistence of the said marriage, the 1st accused took the second accused Gangavva as his second wife; that the remaining accused Nos. 3 to 8 assisted them, in bringing about their marriage and also participated in the marriage ceremony and thereby all the accused have committed the offence punishable underSection 494 R/W Section 34 IPC. The Trial Magistrate after conducting an enquiry under Chapter XV of the Code came to the conclusion that there was sufficient ground forproceeding and accordingly, directed issue of process against all the accused for an offence punishable under Section 494 R/W Section 34 IPC as per his order dated 15th June, 1984.
4. The accused carried the matter to the Court of Sessions at Belgaum in Crl. Revision Petition No. 86 of 1984. The revision came to be decided by the I Additional Sessions Judge, Belgaum, who as per his order dated 3-12-1984 dismissed the Revision Petition and confirmed the order of the Trial Court.
5. Hence, this Criminal Petition is by the accused.
6. The Petition came up for admission on 15-1-1985. Under an order of even date the Petition was admitted relating to accused Nos. 3 to 8 only.
7. Sri Ashok Kalyan Shetty, Learned Advocate for the accused vehemently contended that the order of the Trial Magistrate as confirmed by the Sessions Judge in relation to A-3 to A-8 amounts to abuse of process of the Court and as such, it is liable to be set-aside to secure the ends of justice. Elaborating his contention he proceeded to argue that no overt-act was alleged against any of the accused 3 to 8 in bringing about the marriage between accused-1 and 2. The allegations restricting the part played by them in the conduct of the marriage stated in the complaint andreiterated in the sworn statement of the complainant and her witness are vague and of a general nature. No specific act has been assigned to any of them either in bringing about the alliance or in the conduct of the marriage. No material of substance was placed before the Magistrate to hold that there was sufficient ground to proceed against them for an offence under Section 494 R/W Section 34 1PC. On these grounds, he submitted that the order of the Trial Magistrate and that of the Sessions Judge, including the criminal proceedings initiated against the accused 3 to 8 are liable to be set-aside.
8. Sri S. R. Sindhe, Learned Advocate for the complainant argued in support of the order and contended that at the stage of issuing process on a private complaint, the Magistrate has to form an opinion on the basis of the material referred to the Section 203 of the Code that there is sufficient ground to proceed for the alleged offence. The complainant at that stage need not prove the offence alleged which he required to do only at the stage of Trial after the accused are summoned before the Court. He further argued, in a case of this nature, the complainant is not required to establish that the Second marriage was cont ducted with all the formalities by giving every details of the marriage according to the custom of the caste or community to which the parties belong at the stage of issuing process to the accused for their appearance. They need be established only in the course of the Trial. If the matter is looked upon from this angle, his submission was that the order passed by the Trial Magistrate as confirmed by the Sessions Judge relating to accused 3 to 8 also is unexceptionable and unassailable. On these grounds, he contended that the Petition deserves to be dismissed.
9. The offence alleged against all the accused was one punishable under Section 494 read with Section 34 1PC. Section 494 provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. A plain reading of the section shows that the Section applies to both husband and wife, if the husband or the wife takes a second wife or husband as the case may be in the circumstances stated in the body of the Section, he or she would commit the offence punishable under the Section. However, the language of the Section does not bring either the second wife or the second husband within its ambit. But, in a given ease either of them may commit the offence under this. Section read with Section 109 I.P.C. or Section 34 I.P.C. This would equally apply not only to the second wife or the second husband but also those who either abet the second marriage or bring about the second marriage in furtherance of their common intention in the circumstances stipulated in Section 494 I.P.C.
10. Abetment may be by words or conduct. When the accused merely abetted the principal offender byencouraging or instigating him by words but never went beyond the preliminary stage and took no part in the actual crime, such an accused could be convicted of the actual crime committed with the aid of Section 109. However, it must be noticed that abetment under the Indian Penal Code involvescomplicity on the part of the abettor and this complicity must be at a point prior to the actual commission of the offence.
11. Now, turning to Section 34 of the IPC, it is seen that there exists a common intention of all the accused to commit the offence and the offence or the criminal act is committed in furtherance of the common intention of all, law lays down that each of such persons is liable as if the criminal act or the offence is done or committed by him alone.
12. It is necessary to keep in view these requirements of law while considering the acts of the accused in a given case where they are alleged to have committed the offence under Section 494 IPC read with Section 109 or 34 IPC.
13. In this background, I shall now proceed to consider the facts of the case as disclosed from the complaint and the material placed by the complainant before the Trial Magistrate. The complainant has alleged in her complaint that the 1st accused married her on 7-6-1978 as per the custom in their family. After the marriage, she went and lived with him in his house for some time happily. However the happy married life of the complainant did not last long as the first accused began to ill-treat her at the instigation of accused Nos. 3 to 6, the reason for the instigation was that the 6th accused wanted her younger sister to be married to the first accused, but he took the complainant as his wife much against their liking. Accused Nos. 3 to 6 were at the back of the ill-treatment meted out to her by the 1staccused as time passed he began to listen to them in whatever they used to say about the complainant. Due to the persistent ill-treatment and continuous sufferings, she became mentally sick and her father got her treated in the Civil Hospital at Belgaum. After she recovered from her mental shock, she again went to the house of the first accused. However, there was no change in their attitude towards her. In the mean-time, the complainant became pregnant. Accused Nos. 1 to 6 made efforts to cause her a forced miscarriage, but did not succeed. Unable to bear the ill-treatment and the sufferings the complainant made an attempt to commit suicide. However, her life was saved by timely medical assistance rendered to her by her father and after she recovered, her father took her to his house on 8-8-1979. The complainant gave birth to a male child. After the delivery, either the first accused or his parents did not take the complainant to their house even though they were sent for several times. In these state of affairs on 8-6-1984 the complainant came to know that the first accused had married the second accused in Sri Veerabhadreshwara Temple at Moje Hattargi village, that the marriage was performed by one Gurupadaiah Balaiah Hallada Mutt, according to the Hindu rites and that the marriage was conducted at the instigation of accused Nos. 3 to 8. Accused Nos. 2 to 8 knew that the complainant was the legally wedded wife of the accused and their relationship continued. On these grounds, she alleged that all the accused have committed the offence underSection 494 read with Section 34 IPC.
14. In support of the allegations made in the complaint, the complainant, in addition to her own sworn statement, examined Gurupadaiah Balaiah Hallada Mutt (PW-2) who had performed the second marriage between the first and the second accused. The complainant in her sworn statement by and large spoke in support of the allegations made in the complaint. She has specifically stated in her statement that her parents-in-law - accused Nos. 3 and 4 attempted to cause her a forced miscarriage and in that regard, they took her to a Doctor by name Gangoo Bai and got administered certain medicine telling the Doctor that the complainant was carrying two months even though her pregnancy was 4 to 5 months old. Their attempt to cause a forced miscarriage did not materialise. She has reiterated that she came to know that the first accused had married the second accused on 5-6-1984 and in that marriage, accused Nos. 3 to 8 took active part.
15. P.W-2 has stated in his sworn statement that he was the Archak in Hattargi Veerabhadreshwara temple. He used to perform the marriages in the temple. If the marriage party brings their own Swamy, that Swamy will perform the marriage and he used to oblige the marriage party to conduct the marriage in the temple. In case, the marriage party does not bring their own Swamy and request him to perform the marriage, he will perform the marriage. On 4-6-1984, accused Nos. 1 to 8 went to him in the evening and requested him to perform the marriage of accused Nos. 1 and 2 on the next day that is on 5-6-1984. As to what had transpired on 5-6-1984, P.W-2 has stated as follows ;
These are the material placed by the complainant before the Trial Court.
16. The case of the complainant as it appears from the complaint and supported by her sworn statement leading up to the celebration of the marriage between the first and the second accused on 5-6-1984 in Sri Veerabhadreshwara Temple, is that she was the legally wedded wife of the first accused; she was unable to live with him in his house as he ill-treated her at the instigation of accused Nos. 3 to 6 and made her living miserable and impossible; she went to her parents' house for delivery; and gave birth to a male child; the 1st accused or his parents did not takeher to their house after her confinement and while she was away in her parents' house, the 1st accused married the second accused at the instigation and connivance of accused Nos. 3 to 8 and there-by they committed the offence under Section 494 read with Section 34 IPC. The averments made in the complaint as well as the facts stated by the complainant in her sworn statement relating to the conduct of the marriage between the first and the second accused were what she had learnt from others as she was not personally present at the marriage ceremony. However, it is seen from the evidence of P.W-2 that all the accused approached him on 4-6-1984 and re-quested him to perform the marriage between the first and the second accused on the following day in Sri Veerabhadreshwara Temple of which he was the Archak, that only these accused were and none else was present and participated in the marriage, that he performed themarriage as per the custom prevailing the in Kurubara community who are Hindus by religion; and accused Nos. 3 to 8 took part in the performance of the marriage. It is true that P.W-2 has not given the details of the ceremony nor the specific part played by each of the accused-3 to 8 in the performance of the marriage. However, the fact remains that the marriage was performed according to the Hindu rites followed in the Kurubara community. P.W-2 has further stated that on behalf of the first and the second accused their respective parents were present besides the elder brother and sister-in-law of the 1st accused who are accused5 and 6 respectively. Accused-3 and 4 are the parents of A-1 and accused-7 and 8 are the parents of A-2. It is true that the complainant has to prove that the marriage between A-l and A 2 was a valid marriage, performed in accordance with the religious rites or customs prevailing in the Kurubara Community to which the parties belong and what part was played by each of the accused in the marriage ceremony so as to hold them liable for the offence under Section 494 TPC read with Sections 34 or 109 TPC as the case may be at the stage of the trial. These are the matters relating to the details on which one could not expect nor it was obligatory for the complainant to give detailed evidence at the stage when the Magistrate had to consider whether there was sufficient ground to proceed and on that basis to secure the presence of the accused by issuing process for further probing into the matter.
17. At the stage of issuing process, all that the Magistrate has to consider is, whether there is sufficient ground to proceed. The fact that all the accused went in a body and approached P.W-2 at his place in Hattargi village and requested him to perform the marriage between the first and the second accused on the following day in the temple and all of them and none else had participated in the marriage and that accused 3 to 8 had intended to get the marriage of the first accused with the second accused performed, can be seen from the sworn statement of P.W-2. In a marriage which was performed according to the Hindu rites followed in the Kurubara community as spoken to by P.W-2 the Purohit also performed the marriage; the part played by the parents of the bride and the bridegroom cannot be said to be that of mere on-lookers or well wishers or that of guests or invitees. Their participation in the marriage ceremony has special religious sanctity, constituting their involvement in the performance of the marriage. This is clear from the evidence of P.W-2 who has stated that on behalf of the bride and the bride-groom (A1and A2) their respective parents were present. On these material, it is difficult to accept the argument that, there is no sufficient ground to proceed against the patents of A-1 and A-2.
18. However, as rightly argued by Sri. Ashok Kalyan-Shetty, Learned Advocate for theaccused, the same could not be said in respect of accused 5 and 6. They might have obeyed their elders A3 and A4. and accompanied them. They might have participated in the marriage as the relatives of the first accused and in the presence of A-3 and A-4 They may not have any religious function to perform in bringing about the marriage between A-1 and A-2. In thesecircumstances, issue of process against A-5 and A-6 seems to me not sustainable.
19. Sri Ashok Kalyan Shetty, in the course of his arguments, referred to a number of unreported decisions of this Court viz., N.N. Borade Sugandhi & others -v.- Gholap, Crl. P. No. 15/1974 DD. 18-4-1984; Shivappa & Another -v.- Lakshmibai, Crl. P. No. 165/1982 DD. 15-7-1982; Bharma Nemanna & others -v.- Lakshmibai, Crl. P. No. 718/1982 DD. 1-12-1982; Govindegowda & others v. Tungamma, Crl. P. No. 529/1982 DD. 22-11-1983; C.S. Ajanalkar -v.- State and another, Crl. P. No. 718/1983 DD. 9-11-1983; Grappa -v.- Gorawwa, Crl. P. No. 393/1983 DD. 11-6-1985; D. A. Halkarni -v.- Lakshmibai, Crl. P. No. 209/1984 DD. 12-4-1984; and Bhimappa and others -v.- Parwatavva Kom Rudrappa, Crl. P. No. 939/1984 DD. 21-3-1985, and relying on these decisions, vehemently contended that there is no sufficient ground to proceed against accused Nos. 3 to 8 who are the parents and the close relatives of either the first accused or the second accused. 1 have carefully gone through each and every decision (supra) relied upon by him. However, I do not find any proposition of law having been laid down in any of these decisions as sought to be urged by Sri Kalyan Setty that in a case where the offence alleged Is one falling under Section 494, except the bride and the bridegroom the other relatives including their parents cannot be proceeded against even when the material placed before the Court would show that the parents of the bride and the bridegroom have participated in the marriage performed according to the Hindu rites followed by custom in the community to which they belonged under which the parents and other close relatives of the bride and the bride-groom have to perform certain religious functions in the performance of the marriage. Statements made either in the complaint or in the sworn statement of the complainant and the witnesses to this effect cannot be termed as an omnibus statement so as to hold that there is no sufficient ground to proceed against them. Each case will depend upon its own facts and circumstances to form an opinion whether there is sufficient ground to proceed against the accused. The parents or other relatives of the bride and the bridegroom truly cannot be proceeded against for an offence under Section 494 I.P.C. They could be proceeded against either for an offence under Section 494 R/W Section 34 I.P.C. or under Section 494 R/W Section 109 IPC., depending upon the nature of the acts done by them in bringing about the alliance and performance of the marriage.
20. I do not see any principle of law has been laid down in any of the decisions (supra) except in quashing the proceedings relating to the issue of process to the parents and other relatives of the bride and the bride-groom. From the uniformity of the result of the decisions, it cannot be said that a principle of law has been laid down by this Court as sought to be argued by Sri Kalyan Shetty that in a case where the offence alleged is one falling under Section 494 I.P.C, except the bride and the bride-groom the other relatives including their parents cannot be proceeded against irrespective of the facts and circumstances of the case. On the facts of the case, it seems to me that issue of process against accused-3, 4, 7 and 8 was basedon sufficient material whereas interference is necessary so far as issue of process against A-5 and A-6 are concerned.
21. The observations if any, made in the course of this order touching the merits of the case shall not affect the trial of the case.
22. In the result, for the reasons stated above, the Petition is allowed in part. The process issued against A-5 and A-6 is quashed. In other respects, the order of the Trial Court as confirmed by the I Additional Sessions Judge, Belgaum, is maintained.