S.b. Criminal Misc(Pet.) v. State Of Rajasthan Through Public Prosecutor Office Of Public Prosecutor, Jodhpur

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR S.B. Criminal Misc(Pet.) No. 414 / 2015 Kapil Parihar S/o Ravindra Singh, by caste Mali, age 39 years, R/o C/o Dishi Malhotra, Lal Maidan, Paota C Road, Army Children Academy School, Near Income Tax Office, Jodhpur. ----Petitioner Versus 1. State of Rajasthan through Public Prosecutor Office of Public Prosecutor, Jodhpur. 2. Santosh W/o Kapil Parihar, age 31 R/o Saint Balram Das Colony,Nataur. ----Respondents _____________________________________________________ For Petitioner(s) :Mr,. Sudhit Tak For Respondent(s) :Mr. MS Panwar, PP Mr. Sunil Mehta, for the complainant _____________________________________________________ HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 16/08/2017 1.Petitioners have preferred this misc. petition under Section 482 of Cr.P.C. for quashing and setting asie the orderdated 24.06.2014 passed by the learned Chief Judicial Magistrate,Nagaur in case No.416/2014 as well as order dated 16.12.2014passed by the learned upper session Judge, Nagaur in caseNo.39/2014. 2.Learned counsel for the petitioner has relied upon theprecedent law in Dr. Prem Mittal Vs. State of Rajasthan & Ors. Reported in 2000 0 CrLR 372, the relevant portion of thisjudgment which reads as under :- “ 7. At the stage of taking cognizance of an offenceand summoning a person as an accused thereof it isrequired that the facts constituting the commission ofthe alleged offence be brought on the record of thecase. At that stage of the proceedings the Court hassimply to feel satisfied mat there was prima faciesufficient evidence disclosing the commission of thealleged offence and justifying the issue of processand summoning the person complained of as accusedthereunder. Prima facie evidence in that sense of thematter means legally admissible evidence and notinadmissible evidence and inferences drawn fromsuch inadmission evidence. Where a person has beenaccused of having committed the offence of Bigamypunishable under Section 494,1.P.C. it is requiredthat the facts constituting the offence under Section494,1.P.C. be proved by legal evidence to establishprima facie case justifying the summoning of theperson as accused for offence under Section494,1.P.C. Therefore, prima facie evidence to provethe second marriage by him has to be brought on therecord of the case. In order to prove the secondmarriage, the performance of the essentialceremonies requisite to constitute a legal and validmarriage according to the rites and tenets of thereligion professed by the parties or to the legalcustom prevalent in the section of society theybelong to, has to be proved. If no evidence isbrought on record to prove the second marriage inthe way stated above, there would be no prima facieevidence in support of the second marriage and theperson or persons, who are being accused of havingbeen involved in or concerned with the performanceof second marriage, cannot be summoned as accusedthereof in a given case. 10. It is thus well settled in law that in order toaccuse a person of having committed the offence ofBigamy punishable under Section 494,1.P.C. it has tobe specifically pleaded and prima facie proved thathe has contracted a second marriage, afterperforming the essential ceremonies required forconstituting a marriage as per rites and tenets of thereligion practised by the parties concerned oraccording to the customs prevalent in their caste,community or society. Desertion of the first wife bythe husband and his living with another womanwould not by itself be sufficient to establish his 10. It is thus well settled in law that in order toaccuse a person of having committed the offence ofBigamy punishable under Section 494,1.P.C. it has tobe specifically pleaded and prima facie proved thathe has contracted a second marriage, afterperforming the essential ceremonies required forconstituting a marriage as per rites and tenets of thereligion practised by the parties concerned oraccording to the customs prevalent in their caste,community or society. Desertion of the first wife bythe husband and his living with another womanwould not by itself be sufficient to establish his second marriage with the other woman for thepurposes of Section 494,1.P.C. In order to attractthat provision for summoning the husbandunder Section 204, C.P.C. as an accused thereunderprima facie evidence on the requisite ceremoniesperformed at the time making the alleged secondmarriage is required to be brought on the record ofthe case. ” 3.Learned counsel for the respondent however, opposed the same and relied upon the judgment of Mohinder Singh Vs.Gulwant Singh & Ors. Reported in (1992) 2 Supreme Court Cases 213, the relevant portion of this judgment which reads asunder :- 4. “Lastly relying on a decision of this Court in ShantiDeb Berma v. Smt. Kanchan Prava Devi to whichone of us (S. Ratnavel Pandian, J) was a party, itwas submitted by the learned Counsel for therespondents that in the absence of an allegationthat the marriage of Darshan Singh with JagjitKaur was celebrated in accordance with thecustoms dispensing with the requisite ceremoniesand usage applicable to the parties, the allegedfirst marriage should be held to have been notproved in the eye of law. This submission is notavailable to him at this stage because that can bedetermined only at the stage of the trial of thecase. ” After hearing counsel for the parties and perusing the record of the case as well as the impugned orders, this Court is ofthe opinion that the learned Court below has taken the evidenceand particularly primia facie found that father of the accused isaccepted the fact of the second marriage and has acted in a suchmanner so as to protect the earlier wife and her daughter. Theaction of the father as per learned Court below prima facie pointsout that the fact are sufficient to take cognizance because thestage of cognizance is a very preliminary stage of cognizance and the learned court is only required to see the prima facie case. 5.In light of the aforesaid observations, the misc. petitiondoes not survive, hence, the same is dismissed. However, duringtrial, the petitioner shall be at liberty to raise all issues atappropriate stage.. (DR. PUSHPENDRA SINGH BHATI)J. sudheer