1. This petition is filed by the petitioners/accused 3 to 8 to quash the second charge framed against them by the Chief Judicial Magistrate, Coimbatore in C.C. No. 11 of 1980 pending on his file.
2. It appears from the facts of the case that the respondent herein filed C.C. No. 11 of 1980 before the Chief Judicial Magistrate, Coimbatore under Section 494 read with Section 109, I.P.C against accused 1 and 2 and the petitioners herein. The contention of the wife/respondent was, that while her marriage was subsisting with the first accused, the first accused married the second accused and, therefore, the first accused is liable to be punished under section 494, I.P.C. That apart, it was contended that the third accused who is the mother of the first accused, the fourth accused who is the elder brother of the first accused, accused 5 and 6 are either sister-in-law sisters of the first accused and accused 7 and 8 who are the sisters and who are all the petitioners herein, have abetted in the offence committed by the first accused and hence they are also liable to be punished under Section 109 and 494, I.P.C. Evidence was left in by the complainant/respondent herein before the Chief Judicial Magistrate, Coimbatore. Apart from P.W. 1, P.Ws 2 and 3 were also examined. Charges were framed by the Magistrate not only against the first and the second accused but also against the petitioners/accused 3 to 8 herein.
3. On the evidence adduced before the Chief Judicial Magistrate, Coimbatore with reference to the part played by the petitioners, the learned counsel appearing for the petitioners contends, that in so far as the petitioners herein are concerned, no offence of abetment has been made out and, therefore, the second charge framed against the petitioners under sections 109 and 494, I.P.C. is uncalled for, unwarranted and illegal and the proceedings against the petitioners in C.C. No. 11 of 1980, in so far as the petitioners are concerned, is unsustainable and has to be quashed. The learned counsel for the petitioners reading before me the evidence of P.Ws 2 and 3 adduced before the Chief Judicial Magistrate, Coimbatore, contends, that there is no case for abetment against the petitioners herein and they are not liable for the said offence nor a charge framed against them is warranted.
4. From the evidence of P.W. 2, who is said to be an eye-witness to the second marriage and from the evidence of P.W. 3, it is clear that, it is only the sixth accused (4th petitioner herein) and there is nothing to show that the petitioners 1 to 3, 5 and 6 have intentionally aided or instigated the first accused in committing the offence of Section 494, I.P.C. It was also argued that there is no specific evidence either of P.W. 2 or of P.W. 3 to show, as to what part the petitioners have played by which, they can be said that they have abetted in the offence committed by the first and the second accused. In short, the learned counsel for the petitioners contends that from the oral evidence of P.Ws 2 and 3 adduced in his case. A case as against the petitioners with reference to abetment cannot be said to have been made out in so far as the petitioners 1 to 3, 5 and 6 are concerned and the trial Judge has erred in law in charge-sheeting the petitioners for the offence of abetment.
5. I have gone through the evidence of P.Ws 2 and 3. There is nothing to show in their evidence that the other petitioners have taken any part in the performance of the second marriage of the first accused or can it be said, from the evidence adduced by P.Ws 2 and 3, that the petitioners 1 to 3, 5 and 6 have abetted in the commission of the offence by the first accused. The learned counsel Mr. Calvin Jacob appearing for the respondent contends that the mother of first accused, who is the first petitioner herein, has taken part in the second marriage of the first accused and it cannot be said that the mother is not liable for the offence levelled against her. He also contends that accused 4 and 5 were also present at the time of the marriage, and, therefore, they are also liable in abetting the offence committed by the first accused, as otherwise their presence is unnecessary at the time of the marriage. Prima facie, the argument of the learned counsel Mr. Calvin Jacob appears to be sound. But if that argument is taken into consideration, persons who have gone to attend the marriage will also be coming within the purview of abetting the offence committed by accused 1 and 2.
6. With reference to the facts, particularly in a case of this type, we have to consider what is an abetment. The definition of abetment in Section 107 I.P.C. includes not merely instigation, which is the normal form of abetment but also conspiracy and aiding, and those three forms of abetment are dealt with, in the proviso to Section 111 I.P.C. Instigation must have reference to the thing that was done. By mere association of the accused persons in this case, who are charged for an offence of abetment and the principal offender in the absence of any material to show that there was an instigation by the petitioners or that there was any intention either in aiding or in commissioning the offence committed by the first accused, it cannot be said that they have committed an offence of abetment. The accused persons can be charged and convicted for the offence of abetment where there is evidence to show such persons have instigated or otherwise abetted in the acts of the person who has actually committed the offence or the crime. In so far as the instant case is concerned, from the evidence, it cannot be said that the petitioner have committed an offence of abetment. As stated above abetment is an instigation to a person to do an act in a certain way or aid some other person in doing an act which is an offence. In other words, it is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence.
7. Reliance is placed by the learned counsel Mr. Sri Ramulu appearing for the petitioners on a decision reported in State v. Malan Rama : (1958)60BOMLR428 . That was a case where accused No. 1 went through a marriage ceremony with another during the lifetime of his wife. Accused Nos. 2 to 9 and 11 to 13 were charged and convicted, during the trial along with accused No. 1, of offences under S. 494 read with Section 114 I.P.C. The facts found against them were (i) that they were present at the time of the celebration of the marriage at the house of accused No. 9; (ii) that they had knowledge of the fact that accused No. 1 was purporting to marry a second wife during the lifetime of his first wife; (iii) that they threw holy rice over the couple during the performance of the marriage; (iv) that accused No. 3 distributed Pan after the ceremony was over : and (v) that accused No. 9 held the 'anterpat' during the performance of the ceremony, and permitted the of his premises for the performance the marriage. It was held, after going through the evidence and the facts that case by the learned single Judge of the Bombay High Court, that 'the mere presence of the accused at the ceremony knowing that the offence bigamy was being committed and the throwing of holy rice over the couple did not amount to abetment of bigamy notwithstanding that accused No. 3 had distributed pan after the ceremony While dealing with the offence of conspiracy, the learned Judge held at pages 704 and 705 as follows :-
'The question as to whether this amounts to an abetment or not depend upon a consideration of Explanation to Section 107 of the I.P.C. That Explanation says that whoever, either prior to or at the time of the commission of an act, does anything order to facilitate the commission that act, and, thereby, facilitates the commission thereof, is said to aid doing of that act. Therefore, in order that the aforesaid act of throwing rice may be said to be an act of abetment it is necessary to enquire whether the act of throwing rice was done in or to facilitate the commission of bigamy and, thereby bigamy was facilitated, is not shown that this act is one of necessary acts which has got to be performed in the celebration of a marriage It is true that the ceremony which undertaken by accused No. 1 was a void ceremony, and anything which done on the aforesaid day did not amount to marriage in law. But, in order that offence under section 494 may be committed, it is necessary, at least, that the ceremonies which are necessary, be performed in order that a valid marriage may take place, ought to performed and, ordinarily all the ceremonies would amount to a valid marriage but for the fact that marriage becomes void on account the existence of a previous wife. It now shown to me that the throwing rice on the couple was a necessary part of the ceremony in the performance a valid marriage. It appears that this thing is ordinarily done by all spectators who remain present at marriage, and the act is more consist with the presence of the aforesaid persons at the time of the celebration of the marriage rather than actual participation in the acts which ultimately lead to the formation of the marriage contract. In my opinion, the aforesaid act in itself does not lead to the necessary conclusion that the act was done to facilitate the performance of the marriage, much less could it be said the thereby the performance of the marriage was facilitated. Under the aforesaid circumstances, I have come to the conclusion that the acts which have been brought home against all the accused persons, except accused Nos. 3 and 9 whose further case will be consider, thereafter, do not necessarily amount an act of abetment.'
In the instant case on the facts, I am of the view that though persons were present and received sacred rice but they did not throw rice on the couple nor is there any evidence to that effect That apart, the evidence adduced the instant case before us does not throw any light that the petitioner presence at the time of the marriage amounted to the commissioning of the offence and had these persons had not remained present at the time of the marriage, the offence under section 494 I.P.C. would not have taken place. As far as the first petitioner/accused 3, who is the mother of the first accused, concerned, she would have been present just out of sentiments or social considerations. Just because the first petitioner was present at the time of the marriage, along with petitioners 2, 3, 5 and 6, it cannot be said that she was there, only to commit abetment of the offence to be committed or committed by the first accused. Taking the evidence in its nature, more particularly that of P.W. 2 and P.W. 3, I am of the view that a charge of abetment under section 109, I.P.C. cannot be levelled against the petitioners, excepting Palaniswamy son of Ramaswamy Gounder who is the fourth petitioner herein who according to the evidence of P.Ws. and 3, was. It is for the fourth petitioner, at appropriate time, to adduce evidence to show that his presence was not for the performance of the marriage or has he abetted in the offence committed by the first accused. But in far as the other petitioners, excepting the fourth petitioner Palaniswamy son of Ramaswamy Gounder, are concerned, I am of the view on the materials and the evidence adduced by P.W. 2 and P.W. 3 before the Chief Judicial Magistrate. Coimbatore, a charge of abetment cannot be levelled against the petitioners 1 to 3, 5 and 6 Under these circumstances, I find that the second charge, in so far as the petitioners 1to 3, 5 and 6 arc concerned that they have committed an offence under section 109 and 494 I.P.C., is not maintainable as against them on the evidence adduced in this case and has to be quashed and it is accordingly quashed and the petition is allowed. The petition as against the 4th petitioner is dismissed.
8. Petition allowed.