IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3189/2014 BETWEEN 1. SRI S T KUMARASWAMY S/O LATE S.Y.THIMMANNA AGED ABOUT 32 YEARS, 2. SRI. S.T.HANUMANTHAPPA, S/O LATE S.Y.THIMMANNA AGED ABOUT 32 YEARS, PETITIONERS NO.1 & 2 ARE R/AT PALLAGATTE VILLAGE, JAGALUR TALUK-577528, DAVANAGERE DISTRICT.
3. SRI. YANKAPPA S/O DURGAPPA AGED ABOUT 55 YEARS, 4. SMT. CHINNAMMA W/O YANKAPPA AGED ABOUT 52 YEARS, PETITIONERS NO.2 & 3 ARE R/AT KALLUBANDE VILLAGE, (KUNTAPALANAHALLI), DAVANAGERE TALUK AND DISTRICT-577001.
5. SRI. SIDDAPPA, S/O GURAPPA AGED ABOUT 70 YEARS, 6. SRI. SURESH S/O SIDDAPPA AGED ABOUT 47 YEARS, 7. RAMAPPA S/O SIDDAPPA AGED ABOUT 45 YEARS, PETITIONERS 5 TO 7 ARE R/AT JAMBULINGANAHALLI, HARAPANAHALLI TALUK-583131 DAVANAGERE DISTRICT.
8. SRI. VEERABHADRAPPA, S/O RAMACHANDRAPPA, AGED ABOUT 45 YEARS, 9. SMT. PUSPHA W/O VEERABHADRAPPA AGED ABOUT 42 YEARS, PETITIONERS 8 & 9 ARE R/AT SHETTYGONDANAHALLI, JAGALUR TALUK-577528, DAVANAGERE DISTRICT.
10. SRI. SANNA HANUMANTHAPPA, S/O SANNAPPA AGED ABOUT 48 YEARS, 11. SRI. DODDAHANUMANTHAPPA, S/O SANNAPPA AGED ABOUT 58 YEARS, PETITIONERS 10 & 11 ARE R/AT GUDEHALLI VILLAGE, HARAPANAHALLI TALUK-583131 DAVANAGERE DISTRICT.
(BY SRI V B SIDDARAMAIAH, ADV.) AND SMT. LAKSHMI W/O HEMANNA AGED ABOUT 30 YEARS, R/AT RAMAGATTA VILLAGE, HARAPANAHALLI TALUK-583131 DAVANAGERE DISTRICT.
... PETITIONERS ... RESPONDENT (BY SRI SANDEEP KATTI, ADV.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.684/2012 (PCR NO.35/2008) ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, HARAPANAHALLI.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners are accused nos. 3, 4 and 6 to 14 in CC No.684/2012. The said proceedings were initiated based on the private complaint filed by respondent Smt.Lakshmi.
2. According to the complainant, she is the legally wedded wife of accused no.1. Their marriage was solemnized in accordance with Hindu customs and rituals at Pallagatte Village, Jagalur Taluk on 30.11.2013. She was ill-treated and harassed in the matrimonial home and accused no.1 forced her to abort the first child. After the birth of second child, she was not taken back to the matrimonial home. Hence, she filed a petition seeking maintenance from accused no.1. Accused no.1 in turn filed a petition for divorce. During the pendency of the divorce petition, it is alleged that accused nos. 1 and 2 contracted second marriage on 7.5.2008 at Thirtharameshwara Temple, Belagutti Village, Honnali Taluk, Davanagere District. The same was abetted by respondent nos. 3 to 15 and hence she sought prosecution of accused nos. 1 to 15 for the offences punishable under Sections 494 and 109 read with Section 34 of IPC.
3. Learned Magistrate recorded the sworn statement of respondent/complainant and one of her witnesses namely the President of Thirtharameshwara Temple who produced a receipt book containing the receipt for having solemnized marriage between accused nos. 1 and 2.
4. Considering the said material, the learned Magistrate took cognizance of above offences and issued summons to the petitioners herein to face trial for the said offences.
5. Heard learned counsel for the petitioners and learned counsel for respondent and perused the record.
6. A reading of the sworn statement of the complainant and her witness does not indicate that the petitioners have assisted the performance of second marriage between accused nos. 1 and 2. It is not forthcoming neither in the complaint nor in her sworn statement as to how she came to know about the performance of second marriage between accused nos. 1 and 2. It is not the case of the complainant that she had seen any of the petitioners herein i.e. accused nos. 3 to 5 during the performance of the alleged second marriage. The only allegation made against the petitioners is that with the assistance of petitioners namely accused nos. 3 to 15 accused nos. 1 and 2 have contracted the second marriage. It is a vague allegation. Mere allegation is not sufficient to attract the ingredients of Section 109 of IPC. Section 107 of IPC defines abetment as under:
“107: Abetment of a thing – A person abets the doing of a thing, who – First - Instigates any person to do that t thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing”
7. In the instant case, except stating that with the assistance of accused nos. 3 to 15, accused no.1 contracted second marriage, there is absolutely no allegation whatsoever that the petitioners herein either instigated or aided the performance of the second marriage. There is no indication in the sworn statement or in the complaint that any of these petitioners were present during the performance of the second marriage. The complaint appears to have been filed solely based on the receipt issued by PW.2. Said receipt book at the most would go to show that accused nos. 1 and 2 contracted the marriage but, it does not disclose the involvement of the petitioners in the performance of second marriage. In the absence of acceptable evidence to show that second marriage was performed in the presence of the present petitioners and that they have intentionally aided or abetted the crime, in my view, solely on the basis of vague and sketchy statement given by the complainant, the petitioners herein cannot be prosecuted for the above offences. The material produced by the complainant is not sufficient to proceed against the petitioners for the above offences.
For the reasons stated above, the petition is allowed. Proceedings in CC 684/2012 pending on the file of Civil Judge (Jr.Dn.) & JMFC, Harapanahalli for the offences punishable under Sections 494, 109 R/w.Section 149 of IPC, are quashed only insofar as the petitioners are concerned.
Sd/- JUDGE Sk/- CT-HR