HIGH COURT OF JAMMU AND KASHMIR
MP No. 01/2015
Date of decision: 28.07.2017
Sandupal Dutta & ors. V. Cdr. Urmilla Bhat
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge.
For the petitioner(s) : Mr. Parimoksh Seth,
For the respondent(s) : Mr. Aseem Sawhney,Advocate.
1. Petitioners have filed the instant petition under Section 561-A of the Code of Criminal Procedure seeking quashment of complaint under Section 494 RPC read with Section 109 RPC and Section 406 RPC and 120-B RPC pending trial before the Court of learned Special Mobile Magistrate (Sub-Judge), Jammu and Order dated 05.01.2015 passed by the Court whereby cognizance of the offences aforementioned has been taken and process against the petitioners has been issued.
2. In the instant petition, it has been stated that the marriage between the petitioner No.1 and the respondent was solemnized in accordance with Hindu Rites and Customs at Pashan, Pune on 06.12.2002. After more than one year, a function was organized by the respondent and her family at Jammu only to introduce the respondent and her family with the petitioner No.1 stating that they want to complete some rituals as per their local culture. The event was attended by only the father of petitioner No.1 and none of his other family members. Even the marriage between them was registered at Pune under the Marriage Registration Act. They never resided in the State of Jammu and Kashmir. After living more than three years outside the State of J&K, due to indifferent, uncompromising and incompatible attitude and behaviour of the respondent, the marriage of the petitioner No.1 and respondent was on rocks with led to filing of a divorce petition before the Court of Learned Civil Judge, Senior Division at Vasco Da Gama, Goa. The divorce petition was filed by petitioner No.1 on 17.10.2006 against the respondent. The said divorce petition filed by the petitioner No.1 was contested by the respondent and finally the Court of learned Civil Judge Senior Division at Vasco Da Gama allowed the said petition vide order dated 08.05.2009, whereby the marriage between the petitioner No.1 and the respondent was dissolved by decree of divorce. It is contended by the petitioners that the period of appeal against the order passed under Section 13 of the Hindu Marriage Act is ninety day. No appeal against the said order was filed by the respondent within a period of ninety days or even thereafter. It is further contended that after the aforesaid order dated 08.05.2009 dissolving the marriage of the petitioner No.1 with the respondent attained finality, petitioner No.1 contracted his marriage with the petitioner No.2 on 09.12.2009 at Kolkata i.e. outside the State of Jammu and Kashmir. It is also contended that it appears that the respondent filed first appeal against the order dated 08.05.2009 before the Hon’ble High Court of Bombay at Goa on 11th November, 2009, i.e., much after the limitation period. In the said first appeal, notice was issued on 29th of December, 2009, which was received by the petitioner No.1 by the end of January, 2010 much after the solemnization of second marriage by the petitioner No1 with petitioner No.2.
3. It is contended that respondent in the year 2013 filed a transfer petition before the Hon’ble Supreme Court of India seeking transfer of her first appeal from the Hon’ble High Court of Bombay, Goa to Hon’ble High Court of Kerala at Kochi. The Hon’ble Supreme Court order dated 12.01.2015 allowed the said transfer petition.
4. Further, it is contended that the respondent in order to harass, victimize and blackmail the petitioners has filed a complaint before the Court of learned Special Mobile Magistrate (Sub-Judge) at Jammu for offence under Sections 494, 406, 109, 120-B RPC, wherein mainly the allegations are alleged against the petitioner No.1 but his entire family has been arraign as accused. It is contended that the court of learned Special Mobile Magistrate (Sub-Judge), Jammu without looking into the allegations as contained in the impugned complaint and without appreciating the fact that no offence as much less the offences as alleged in the complaint had ever taken place, has not only entertained the complaint filed by the respondent but has also taken cognizance of the same and process against all the petitioners have been initiated vide order dated 05.01.2015.
5. Per contra, learned counsel for the respondent submitted that the petitioners by way of the instant petition want this court to conduct a roving inquiry and a full dressed trial and determine the facts of the case, which otherwise is not permissible under the inherent power of this Hon’ble Court. The documents and factual disputes cannot be appreciated and be determined by the Hon’ble Court in these proceedings. It is further submitted that the respondent/complainant in her complaint has filed a complaint under section 494 RPC read with 109 RPC and 406 read with 120 B RPC has alleged that the accused No.1 were married on 06.12.2002 and later as per Hindu Traditions Rites and ceremonies at Roop Nagar, Jammu from 23.02.2004 to 25.02.2004 as Kashmiri Pandit Hindu Rites and Ceremonies, wherein the Marriage Card and photographs of the marriage have been appended with the complaint, but very cunningly the petitioners have just filed the complaint but not the annexures. It is further averred that another classic example of the proverbial “suggestion false and suppression veri” by the petitioners is that the petitioners have falsely submitted that the Appeal was filed much beyond the limitation period before the Hon’ble High Court of Bombay at Goa. As a matter of fact the petitioner Nos. 1 & 2 have confessed with audacity that they have married on 09.12.2009 after the appeal period was over, therefore, the factum of 2nd marriage stands admitted, now whether they could have married or not under law is the moot question. It is further averred that the factum of marriage taking place at Jammu, is also evident from the judgment of Divorce itself where the Issue Nos. 1 & 2 have been determined and it has been recorded that the petitioner No.1 has himself stated that the marriage was celebrated at Jammu in February, 2004.
6. Heard learned counsel for the parties and have perused the case file.
7. Learned counsel for petitioners has reiterated all grounds taken in petition. He has further argued and has relied upon section 177 Cr.P.C. that it is only the Court within whose jurisdiction, the alleged second marriage has taken place, is competent to take cognizance . He has cited
1)1986 JKLR 173 case titled Sukh Dev Singh v. Raj Rani 2) 1989 JKLR 6 case tilted Nand Lal v Sudesh Kumari, where in it has been laid down that only that Court has jurisdiction to take cognizance of Bigamy within whose jurisdiction the second marriage took place. Whereas, counsel for respondent has argued that all the grounds taken in petition are pertaining to facts and these facts can be established during trial.
8. I have given my thoughtful consideration to whole aspects of the matter. I have also gone through law on the subject.
9. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Adulla, it is held as under :-
“11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad, Jehan Singh v. Delhi Administration, Amar Nath v. State of Haryana, Kurukshetra University v. State of Haryana, State of Bihar v. J.A.C. Saldanha, State of West Bengal v. Swapan Kumar Guha, Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Bihar v. Murad Ali Khan and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:-
“(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court’s inherent power can be exercised.
12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court.
13. In this regard, it would be seemly to reproduce a passage from Kurukshetra University (supra) wherein Chandrachud, J. (as His Lordship then was) opined thus:-
“2. It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.”
14. We have referred to the said decisions only to stress upon the issue, how the exercise of jurisdiction by the High Court in a proceeding relating to quashment of FIR can be justified. We repeat even at the cost of repetition that the said power has to be exercised in a very sparing manner and is not to be used to choke or smother the prosecution that is legitimate. The surprise that was expressed almost four decades ago in Kurukshetra University’s case compels us to observe that we are also surprised by the impugned order.”
10. Hindu can’t marry a second wife during the subsistence of first marriage; whatever by the reason it is offence under law as per section 494 of RPC and section reads as follows:-
“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 punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
11. Section 177 Cr.P.C. deals with place of trial. It says every offence ordinarily shall be tried by court within local limits of whose jurisdiction it has been committed. Offence u/s 494 RPC is not continuing offence.
12. The relevant Paras of complaint for deciding the matter in controversy reads as under :-
“3. That the accused no.1 is also commissioned officer in the Indian Navy and after the marriage in 2004; the accused no.1 has contracted second marriage with accused no.2 who has abetted the said offence on Bigamy , since both the accused were well aware that the complainant and accused no.1 were married and under Hindu Law the second marriage is not acceptable.
8. That the complainant has learnt and has reason to believe that the accused No.1 and 2 have married each other as per religious rites and customs and in furtherance to the said illegal and void marriage the accused No.1 has got the name of the accused No.2 registered in the service records of the Indian Navy.
That so much so before the Hon’ble Supreme Court of India the accused No.1 in year 2014 has himself admitted /confessed that he has got married with accused No.2 on 09.12.2009. Said reply/objections/pleadings were filed in response to the Transfer Petition filed by the complainant.
9. That in this connection the complainant field an RTI application under the Right to Information Act with the PIO of the Indian Navy at IHQ of MOD(N) New Delhi dated 30.01.2013.
Whereas, the PIO supplied an evasive reply and incorrect information against which the complainant filed a Ist Appeal under the RTI Act. The said Appeal was allowed on 11.03.2013 and a direction was issued to the PIO to provide clear information.
That on 21.05.2013 the information was provided that the accused No.1 Lt. Cdr. Sandupal Duta has declared- Mrs. Kathika Sarkar (accused No.2) as his wife and NoK.
10. That besides contracting a marriage under the rites and customs the said accused No.1 has also got her name incorporated in the official records as his wife and next of kin (NOK) thus making it explicitly clear that the said marriage so contracted with the accused No.2 with the aid, connivance and assent of the accused No.2 is an illegal marriage and the accused No.1 is guilty of the offence of bigamy, and the accused No.2 who has aided and abetted the said offence is guilty of the offence of abetment of bigamy thereto to committed a criminal offence. So much so that the accused No.1 has admitted with temerity before the Hon’ble Supreme Court of India on affidavit in his pleading that he has got married with accused No.2, while as the Hindu Marriage Act clearly debarred him for marrying again, till the appeal was pending and thus the marriage so contracted with accused No.2 is a void marriage and thus make the accused No.1 guilty of bigamy and also the accused No.2 liable for abetment of the offence of bigamy under Section 494 RPC.
11. That since the complainant is a permanent resident of the State of J&K particularly Jammu, her parental house is at Jammu, the traditional marriage took place at Jammu and thus, both complainant and accused No.1 were bound by the J&K Hindu Marriage Act and as per information of the complainant the offence too has been committed at Jammu. The parents and relatives of the complainant during the marriage ceremonies gave a number of gifts to the complainant and accused No.1 and accused No.3 and 4 who are parents of accused No.1, at the time of marriage. The gifts/stridhan so given to the complainant included gold items like ring, chain, bracelet, gold set, (totaling approx 10 tolas) and clothing valuing approx. Rs.5 lacs.
After the marriage said articles were kept in possession by the accused No.1 and his parents- accused Nos.3 & 4, and when the relations between the complainant and accused No.1 became strained, the accused No.1, 3 & 4 refused to give any gold article of the complainant back, which being the stridhan of the complainant, and have misappropriated the same in connivance with each other and flatly denied to give the same back, thus committing criminal breach of trust. The said articles were handed over to the accused No.1, 3 and 4 at Jammu, thus the complaint is being filed in this Court which has the territorial jurisdiction to try the complaint.
13. Bare perusal of these relevant paragraphs of complainant, it is evident that no specific date, time and place as to where and when second marriage was performed between petitioners 1 and 2 herein, have been mentioned. For standing a trial in criminal case, prosecution has to state particulars as to time, place of alleged offence, because in term of section 222 Cr.P.C., accused has to stand for charge; this Section says that charge shall contain particulars as to the time and place of alleged offence.
14. Further, this complaint has cleverly been drafted, without mentioning exact date and place of second marriage allegedly solemnized between petitioner Nos.
1 and 2 herein. Admittedly petitioner Nos. 1 and 2 are resident of West Bangal; certainly they would not solemnize the marriage at Jammu.
15. The territorial jurisdiction of a court for the purpose of taking cognizance is co-extensive with that of the appropriate Court which is competent to try the offence. Section 177 Cr.P.C enjoins that every offence shall be ordinarily enquired into and tried by a Court within those whose local jurisdiction such offence was committed.
16. Where a complaint alleging the commission of a offence is made before /court which does not have territorial jurisdiction in terms of Section 177 Cr.P.C;
then certainly the cognizance is illegal in the eye of laws.
17. Similarly for attracting Section 406 RPC, there should be specific mention as to when the items/articles/stridhan was given and when breach of trust was committed.
18. There is no mentions of such facts, but a general aversion has been made has been made that after the marriage said articles were kept in possession by the accused No.1 and his parents- accused Nos.3 & 4, and when the relations between the complainant and accused No.1 became strained, the accused No.1, 3 & 4 refused to give any gold article of the complainant back, which being the stridhan of the complainant, and have misappropriated the same in connivance with each other and flatly denied to give the same back, thus committing criminal breach of trust.
19. Further from perusal of contents of complaint, it is evident that marriage between complainant and petitioner no.1 herein took place on 6.12.2002; and later as per Hindu traditions rites and ceremonies as per Kashmiri Pandit at Roop Nagar Jammu from 23.2.2004 to 25.2.2005. It further emerges from complaint that gold items, jewelry and gifts were at that time of marriage ceremonies. The litigation started in 17.10.2006 by filing of Divorce petition by Petitioner no.1 at Civil Judge Vasco Da Gama . The offence under section 406 RPC carries punishment up to 3 years and as per section 538-B Cr.P.C, the limitation for taking cognizance is three years.
20. So in any case, if we consider the date of marriage or date of filing of petition for Divorce by petitioner against complainant, as a date of entrustment of stridhan to accused/ petitioners, cognizance is time barred.
21. In view of above discussion, I am of the considered opinion that even if allegations mentioned in complaint 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 persons. No prudent person can ever reach a just conclusion that petitioner nos.1 and 2, who are resident of West Bengal, shall solemnize marriage at Jammu. This criminal proceeding against petitioners is manifestly attended with mala fide and maliciously has been instituted with an ulterior motive for wreaking vengeance on the accused persons and with a view to spite him due to private and personal grudge.
22. Hence this petition is allowed. Complaint under Section 494/109/406/120-B RPC and the proceedings arising thereof, pending trial before the Court of learned Special Mobile Magistrate (Sub-
Judge), Jammu is hereby quashed and impugned order dated 05.01.2015 is set aside.
23. Copy of this order be transmitted to the concerned Court.
(Sanjay Kumar Gupta) Judge Jammu 28.07.2017