IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.5059 OF 2018 (GM-RES) BETWEEN:
1. Smt. Siddamma W/o Late Byravaiah K, Aged about 60 years, R/at: Konnapura Village, Halaguru Hobli, Malavalli Taluk, Mandya District-571 430 2. Shivakumar K.B, S/o Late Byravaiah K, Aged about 35 years, R/at: First Divisional clerk, Excise Department, Subhash Nagara and Gandhi Nagar, Bengaluru-560 009.
3. Smt. Anitha W/o Venkateshaiah, Aged about 40 years, 4. Venkateshaiah Aged about 50 years, Both are R/at No.187, Surya Kumar Building, 5th Cross, Vidya Nagar, T. Dasarahalli, Bengaluru-560 057.
5. Shashikala W/o Shiva Murthy, Aged about 35 years, R/at No.116, 4th Cross, Muneshwara Block, Geleyara Balaga, Mahalakshmi layout, Bengaluru-560 086.
... Petitioners (By Ms. Raksha Keerthana K, Advocate for Sri. Kemparaju, Advocate) AND:
Sujaya V W/o Anand Kumar K.B, Aged about 31 years R/at Hosabudanuru village, Halebudanuru Post, Kasaba Hobli, Mandya Taluk, Mandya - 571 401.
... Respondent This writ petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C praying to set aside the order taking cognizance against the petitioners by its order dated 03.10.2012 passed by the learned Judicial Magistrate First Class, Mandya in C.C.No.838/2012 as per Annexure-E for the offence punishable under Section 494 read with Section 109 of IPC.
This Petition coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:-
ORDER Ms. Raksha Keerthana K., learned counsel for Sri. Kemparaju, learned counsel for the petitioners.
Sri. L. Raju, learned counsel for the respondent.
The petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
2. In this petition under Articles 226 and 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short), the petitioner inter alia seeks quashment of proceedings in C.C.No.838/2012 pending before the Judicial Magistrate First Class, Mandya against the petitioners.
3. The facts giving rise to filing of this petition briefly stated are that the marriage between Anand Kumar K.B. and the respondent was performed on 16.03.2003. It is the case of the respondent that during the subsistence of the marriage with the respondent, the aforesaid Anand Kumar K.B., has married again. The respondent thereupon, filed a complaint on 04.02.2012 against the petitioners as well as her husband, namely, Anand Kumar K.B. for the offence punishable under Section 494 read with Section 109 of the Indian Penal Code. The learned Magistrate by an order dated 08.08.2012 has taken cognizance of the offence punishable under Section 494 read with Section 494/109 of the IPC and has issued processes against the petitioners.
4. Learned counsel for the petitioners submits that the petitioners are in no way concerned about the second marriage of the aforesaid Anand Kumar K.B. and it is further submitted that the order dated 08.08.2012 by which cognizance has been taken in respect of the offence punishable under Section 494 /109 of IPC suffers from vice of non application of mind and is arbitrary.
5. On the other hand, learned counsel for the respondent has supported the order passed by the learned Magistrate and submitted that the complainant’s evidence has already been recorded.
6. I have considered the submissions made by the learned counsel for both the sides and have perused the records.
7. Admittedly, petitioner No.1 is the mother-in-law of respondent whereas petitioner Nos.2 and 3 are respectively brother-in-law and sister-in-law of the respondent. Similarly, petitioner No.4 is brother-in-law of accused Anand Kumar, whereas petitioner No.5 is the younger sister-in-law of the respondent.
8. Provision of Section 494 of IPC relates to the offence committed by either of spouse, who marries during the period of legal and valid marriage. The petitioners herein, who are the relatives of the husband of the respondent could be summoned only with Section 109 of IPC that requires punishment of abetment to commit crime under Section 109 of IPC, which reads as under:
“109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment:- Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.”
9. From perusal of the impugned order dated 08.08.2012, by which summons have been issued to the petitioners, it is evident that the learned Magistrate has not considered the case of the petitioners, who were sought to be summoned as accused. Learned Magistrate has also not referred to any material to show as to how the petitioners have abetted the commission of offence. From perusal of the order, it is evident that the ingredients of an offence punishable under Section 109 of the IPC are lacking against the petitioners.
The learned Magistrate has not applied his mind to consider the material and record the satisfaction that prima facie the offence punishable under Section 109 of the IPC has been committed by the petitioners.
10. Therefore, in the considered opinion of this Court, continuance of the proceedings against the petitioners amounts to abuse of process of law. In the result, the impugned order dated 08.08.2012, passed by the learned Magistrate by which the Magistrate has taken cognizance in respect of the offence punishable under Section 494 read with Section 494/109 of the IPC as against the petitioners are hereby quashed. However, the proceeding under Section 494 of the IPC shall continue as against accused Anand Kumar K.B.
Accordingly, the petition is disposed of.
Sd/- JUDGE Mds/-