Dr.Jayakumar @ Javid Kamal v. Guduvancheri Police Station Kancheepuram District (Crime No.132 of 2005)2. M.Vijayalakshmi (R-2 impleaded

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 13.12.2007CORAM:THE HONOURABLE MR.JUSTICE K. MOHAN RAMCRL.O.P.No.30612 of 2006and M.P.No.1 of 2006Dr.Jayakumar @ Javid Kamal ... Petitioner/Accused-Vs.-1. State, Rep. by The Sub Inspector of Police Guduvancheri Police Station Kancheepuram District (Crime No.132 of 2005)2. M.Vijayalakshmi (R-2 impleaded as per the order of this Court made in M.P.No.3 of 2006, dated 15.12.2006) ... Respondents/ComplainantPrayer.: Criminal Original Petition filed under Section 482 of theCriminal Procedure Code to call for the records in C.C.No.123 of 2006 onthe file of the Judicial Magistrate No.II, Chengalpattu, pending trial,and quash the same.For Petitioner : Mr. N.Pappiah For Respondent: Mr. A.Saravanan Government Advocate (Crl.Side), for R-1. Mr. Doraisamy, for R-2.O R D E RThe learned counsel for the petitioner submits that thepetitioner has come forward with this petition to call for the recordsin C.C.No.123 of 2006 on the file of the Judicial Magistrate No.II,Chengalpattu, pending trial, and quash the same.2. The petitioner, who is facing trial in C.C.No.123 of 2006 onthe file of the Judicial Magistrate No.II, Chengalpattu, for an offenceunder Section 494 IPC, has filed the above criminal original petitionseeking to quash all further proceedings in C.C.No.123 of 2006. Thoughthe petitioner has taken several grounds and has pointed out certainirregularities in the registration of the complaint, in theinvestigation of the case and taking cognizances, etc., this Court isnot going into all those aspects, as the above criminal originalpetition can be disposed of on the ground that even taking theallegations contained in the complaint filed by the second respondent https://hcservices.ecourts.gov.in/hcservices/ and the averments contained in the statement of witnesses to be true, inthe considered view of this Court, no case is made out for registering acase under Section 494 IPC.3. Learned counsel for the petitioner submitted that under thecharge of Bigamy, if the evidence showed that the essential ceremonieshave not been performed, it cannot justify the conviction even thoughadmitted by the accused. He further submitted that the prosecution mustprove that the second marriage was duly performed in accordance withreligious rites applicable to the form of marriage and an admission bythe accused in this respect cannot be made the basis of conviction. 4. Learned counsel for the second respondent submitted that thewritten complaint was given by the second respondent alleging that thepetitioner had married her as per Hindu Customary Rites on 27.06.1982and two children were born out of their wedlock; thereafter leaving heralone he left for Dubai; after 15 years he came back and pleaded pardonfrom her and requested her to come to Chennai; she went to his house atUrapakkam; there she came to know that without divorcing her he hadcontracted a second marriage with one Mumtaz secretly and he was livingwith her as her husband; when questioned, the petitioner is said tohave told that she should not talk about his second wife; that is thegist of the complaint given by the second respondent and on the basis ofthe complaint the first respondent had obtained a legal opinion from theAdditional Public Prosecutor and got permission from the learnedJudicial Magistrate and registered a case under Section 494 IPC andafter completing the investigation has filed a charge sheet. Buthowever the learned counsel is unable to point out the necessaryallegations either in the complaint lodged by the second respondent orin the statement of witnesses recorded in the course of investigationwhich constitute the ingredients attracting the commission of an offenceunder Section 494 IPC. However the learned counsel submitted that theallegations contained in the complaint disclose the commission of anoffence of cheating.5. Learned Government Advocate (Crl. Side) submitted that thecase had to be registered as per the directions issued by this Court inCrl.O.P.No.26747 of 2004 and the final report was also filed pursuant tothe directions issued by this Court in Crl.O.P.No.18756 of 2005. Hefurther submitted that the case was not registered merely on receipt ofthe complaint from the second respondent, but the case was registeredonly after getting permission from the learned Judicial Magistrate.6. I have carefully considered the above said submissions madeby the learned counsel on either side. At the outset, it has to bepointed out that a perusal of the complaint lodged by the secondrespondent does not contain any averments constituting the ingredientsfor the commission of an offence under Section 494 IPC. As rightlycontended by the learned counsel for the petitioner that under thecharge of Bigamy, if the evidence showed that the essential ceremonieshave not been performed cannot justify the conviction even thoughadmitted by the accused and that the prosecution must prove that thesecond marriage was duly performed in accordance with religious ritesapplicable to the form of marriage and an admission by the accused in https://hcservices.ecourts.gov.in/hcservices/ this respect cannot be made the basis of conviction. A perusal of thestatement of witnesses recorded under Section 161 of the CriminalProcedure Code during the course of investigation also shows that thenecessary averments constituting an offence under Section 494 IPC areconspicuously absent. The witnesses have simply stated that thepetitioner had admitted to the complainant that he had married Mumtaz.Such a statement alone cannot be the basis for framing a charge underSection 494 IPC. As laid down in the decision reported in 1966 M.L.J.Crl. 151 (SC) (KANWAL RAM V. HIMACHAL PRADESH ADMINISTRATION) under thecharge of Bigamy, if the evidence showed that the essential ceremonieshave not been performed it cannot justify the conviction even thoughadmitted by the accused. Here there is no such direct admission on thepart of the petitioner, but the second respondent in her statement hadstated that as if the petitioner had admitted the second marriage.Except that, there is absolutely no material to show that the secondmarriage was performed between the petitioner and the said Mumtaz andcuriously the first respondent has not filed any charge sheet againstthe said Mumtaz. The whole procedure that has been followed in thiscase is totally irregular and against the provisions contained inSection 198 of the Criminal Procedure Code. 7. In such view of the matter, the above criminal originalpetition has to be allowed and accordingly allowed and all furtherproceedings in C.C.No.123 of 2006 on the file of the Judicial MagistrateNo.II, Chengalpattu, is hereby quashed. Consequently the connected MPis closed.srkSd/- Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1. The Sub Inspector of Police Guduvancheri Police Station Kancheepuram District (Crime No.132 of 2005)2. The Judicial Magistrate No.II, Chengalpattu,3. The Public Prosecutor, Madras High Court, Madras+1 cc to M/s.S.Doraisamy, Advocate Sr.No.74267.+1 cc to M/s.N.Pappiah, Advocate Sr.No.73894.AD(CO)DCP/7.1CRL.O.P.No.30612 of 2006 and M.P.No.1 of 2006