Appeal against the order dismissal of quash order for the offences under sections 494 r/w 34 IPC
3. These appeals by special leave are preferred on behalf of the appellants herein for assailing the final judgment and order dated 3rd July, 2019 passed by the High Court of Kerala at Ernakulam in Crl. MC. No. 8108 of 2018, whereby, the petition preferred by the appellants herein seeking quashing of the proceedings of Criminal Case No. 791 of 2013 on the file of learned Judicial Magistrate First Class, Court-II, Attingal(hereinafter being referred to as ‘JMFC’) for the offences punishable under Section 494 read with Section 34 of the Indian Penal Code, 1860(hereinafter being referred to as ‘IPC’) was rejected.
4. Learned JMFC after evaluating evidence led on behalf of the complainant under Section 244 of Code of Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’), proceeded to direct framing of charges against the appellants under Section 494 IPC vide order dated 28th May, 2018. This order was challenged by the appellants by filing a Criminal Revision Petition No. 25 of 2018 before the Court of learned Sessions Judge, Thiruvananthapuram which was dismissed vide order dated 26th October, 2018. The appellants assailed the aforesaid order passed by learned Sessions Judge, Thiruvananthapuram by filing Crl. MC. No. 8108 of 2018 3 in the High Court which was rejected by the impugned order. Hence these appeals by special leave.\
Brief facts
6. The complainant- Mr. Reynar Lopez (respondent No.2 herein) married Ms. Lumina(A-1) as per the Christian ceremonies in St. Theresa’s Lisieux Church at Vellayambalam, Thiruvananthapuram, Kerala on 16th April, 2007. It is alleged that on 13th August, 2010, Ms. Lumina(A-1) contracted marriage with Saneesh(A-2) under the Special Marriage Act, 1954 before the Marriage Officer, Nemom. It is alleged that the appellants herein(A3, A-4, A-5, A-6 and A-7) are relatives and friends of Saneesh(A-2) and Ms. Lumina(A-1) and thus they too are responsible for the offence of bigamy committed by Ms. Lumina(A-1) as they had the common intention to commit such offence.
14. At the outset, we may note that the complaint was filed alleging commission of the offence punishable under Section 494 read with Section 34 IPC. However, post recording pre-charge evidence, the learned JMFC passed an order dated 28th May, 2018 directing framing of charge against all the accused persons for the offence punishable under Section 494 IPC.
15. The essential ingredients of offence under Section 494 IPC, as explained by this Court in the case of Gopal Lal v. State of Rajasthan [(1979) 2 SCC 170], are as follows:
“3. The essential ingredients of this offence are: (1) that the accused spouse must have contracted the first marriage (2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and (3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.”
No person other than the spouse could be charged for the offence punishable under section 494 IPC
16. A bare perusal of the penal provision would indicate that the order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. However, this is a curable defect, and the charge can be altered at any stage as per the provisions of Section 216 CrPC.
Appellants were roped for section 34 IPC that they had the common intention to commit the offence under section 494 ipc
17. It is a peculiar case wherein, the complainant has not sought prosecution of the appellants for the charge of abetting the second marriage by Ms. Lumina(A-1) under Section 109 IPC. The appellants herein are being roped in by virtue of Section 34 IPC with the allegation that they had the common intention to commit the offence under Section 494 IPC. In order to bring home the said charge, the complainant would be required to prima facie prove not only the presence of the accused persons, but the overt act or omission of the accused persons in the second marriage ceremony and also establish that such accused were aware about the subsisting marriage of Ms. Lumina(A-1) with the complainant.
Pre-charge evidenced did not support the involvement of the accused of having common intention
18. A perusal of the pre-charge evidence led in support of the complaint would reveal that Flory Lopez(A-3) and Vimal Jacob(A4) were not even alleged to be present at the time of such marriage. Hence, the involvement of these accused for the charge of having a common intention to commit the offence under Section 494 IPC is not established by an iota of evidence.
20. This Court in the case of Chand Dhawan (Smt) v. Jawahar Lal and Others [(1992) 3 SCC 317] while upholding the order passed by the High Court quashing the criminal proceedings under Section 494 IPC against the accused therein, observed as follows: –
9. “………………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 their presence or otherwise facilitated the solemnisation 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.”
(emphasis supplied)
Proceedings quashed
21. As a consequence of the above discussion, we are of the view that allowing the proceedings of the criminal case to be continued against the appellants would tantamount to gross illegality and abuse of the process of Court. The order framing charge as well as the order rejecting the revision petition and criminal miscellaneous petition preferred by the accused appellants do not stand to scrutiny.
Party
S. NITHEEN & ORS. .…APPELLANT(S) VERSUS STATE OF KERALA & ANR. ….RESPONDENT(S) – CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP (Criminal) No(s). 8529 of 2019) – 2024 INSC 420
