IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.4196/2017 BETWEEN:
R. RAJA HALEBEEDU ANCHE MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT-571 431.
...PETITIONER (BY SRI. C.V. SRINIVASA, ADVOCATE) AND:
S.V. SUMA NO.147/427, OPP. 5TH CROSS GANESH MANDIR ROAD SHASTRINAGAR BANGALORE-560 028.
...RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 27.08.2016 PASSED IN THE CASE DIRECTING THE REGISTRATION OF A CASE AGAINST THE PETITIONER FOR OFFENCES WHICH ARE MADE PENAL U/S 494 OF IPC AND ORDERING PROCESS AGAINST HIM FOR HIS APPEARANCE IN THE CASE BEFORE THE 8TH ACMM, BENGALURU IN C.C.NO.20520/2016.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.C.V.Srinivasa, learned counsel appearing for petitioner. Perused the records.
2. Petitioner is seeking for quashing of the proceedings registered in CC No.20520/2016 arising out of PCR No.10846/2015 pending before the VIII Addl. Chief Metropolitan Magistrate, Bangalore, registered for the offences punishable under Section 494 of IPC.
3. Petitioner married respondent on 25.04.2004 and on account of difference of opinion they have been residing separately and petitioner herein has filed a petition in M.C.No.1536/2007 for divorce, which came to be dismissed by the jurisdictional Family Court on 18.02.2012 and same is pending in MFA No.2979/2012 before this Court.
4. Respondent herein filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005, in Crl.Misc.No.139/2011 before the Magistrate Court during the year 2010 and has also filed a private complaint under Section 200 of Cr.P.C. on 20.06.2015 alleging that during the subsistence of their marriage petitioner herein had married one Smt.Pushpalatha, based on which cognizance was taken by the learned Magistrate and said proceedings are now pending in C.C.No.20520/2016. For quashing of said proceedings petitioner is before this Court.
5. It is the contention of Mr. C.V.Srinivasa, learned counsel appearing for petitioner that trial Court committed a serious error in registering the said complaint taking cognizance and issuing summons to the petitioner purely on the basis of allegations made in the complaint, though said allegations do not indicate commission of alleged offence and reliance placed on the documents produced by the complainant have no significance much less it would disclose there was solemnization of marriage between petitioner and fourth respondent. In support of his submission has relied upon the following judgments:
(i) CRL.A. No.608/2008 : DD – 17.12.2013 (ii) CRL.R.C.No.1117/2008 & M.P.No.1/2008 : DD – 21.08.2008 6. Having heard the learned counsel appearing for petitioner and on perusal of records, it requires to be noticed at this juncture itself that this Court would exercise the power under Section 482 of Cr.P.C. to quash the proceedings based on prima facie material if disclosing that there is no commission of the offence. The probable defence, which accused may set up during the course of trial would not be in the realm consideration at this stage. On the other hand, if the allegations made in the complaint prima facie disclosing there is some material which is sufficient enough to go for trial that would suffice and in the instant case, respondent-complainant has not only alleged that there was solemnization of marriage between petitioner and fourth respondent on 02.01.2013, by producing the receipt said to have been issued by temple authority where alleged and purported marriage is said to have taken place, but had also produced the birth certificate dated 29.01.2014 of child begotten by fourth respondent out of the marriage between herself and petitioner herein. A bare reading and perusal of same would disclose the names of petitioner and fourth respondent are appearing. As such, at this stage, it cannot be held that there is no merit in the contention raised by the complainant or in other words, proceedings initiated cannot be nipped at bud.
7. Judgment of Madras High Court relied upon by the learned counsel appearing for petitioner when perused would disclose that in Crl.R.C.No.1117/2008 & M.P.No.1/2008, it arose out of an application filed for DNA test being rejected and in this background, learned Single Judge of High Court of Judicature of Madras held that in order to maintain the charge under Section 494 of Cr.P.C. that there should be evidence to show that essential ceremonies were performed during alleged marriage and such ceremonies and other requirements for a valid marriage has to be established by adducing evidence in the course of trial and a valid marriage between a man and woman cannot be presumed from the fact that child was born out of their relationship. There cannot be any dispute to the said proposition but on the other hand, in the instant case, the dicta laid down by the Madras High Court would not come to the rescue of petitioner, inasmuch as, in the instant case trial is yet to commence and parties are yet to lead evidence and birth certificate produced by the complainant along with her complaint is prima facie material for trial being conducted. Hence, said judgment would not come to the rescue of petitioner.
8. Insofar as, judgment of Coordinate Bench in the matter of Crl.A.No.608/2008 while examining the appeal has discussed that evidence available on record was not sufficient enough to arrive at a conclusion that there was valid marriage between parties. In the instant case, said situation has not arisen.
9. For the reasons aforestated, this Court is of the considered view that this is not a fit case to quash the proceedings at the initial stage, particularly when there is prima facie material produced by the complainant before the trial Court.
I do not find any other ground to entertain this criminal petition and same stands rejected.
I.A.No.1/2017 for stay does not survive for consideration and same stands rejected.
SD/- JUDGE DR