Pravin Padmakar Kamatkar vs Pratibha Ratanlal Goyal and another

T.K. Chandrashekhara Das, J.—The Petitioner was implicated in the Criminal Case No. 181 of 1982 on the file of Judicial Magistrate, First Class, Pune for commission of offence u/s 114 of Indian Penal Code in the commission of offence of bigamy of one Ratanlal Goyal and Nisha. Both Ratanlal and Nisha are the colleagues working in the petitioner''s bank. The allegation against Ratanal and Nisha was that they entered into second marriage while Ratanlal''s wife, first respondent herein, was alive. The allegation, in particular, against petitioner is that the said marriage was out of the conspiracy hatched and the petitioner was party to the conspiracy. Therefore the allegation against the petitioner was that he was an abettor to the marriage of Ratanlal and Nisha.

I heard learned counsel for the petitioner Shri Anturkar and Mrs. Usha Kejriwal for Respondent No. 2.

At the time of admission, there was interim stay of further proceedings of M.A. No. 181 of 1992 against applicant alone. The complaint made before the Magistrate by the first respondent was annexed as Annexure A'' to this petition which is in Marathi. The relevant portion has been translated in English by the learned counsel for the petitioner and learned A.P.P. Mrs. Usha Kejriwal. It is disclosed in the complaint that only role that has been attributed against the petitioner is that it is on account of the conspiracy of the petitioner bigamous marriage has been conducted. Except that allegation, there was no material before the court. There is not even allegation that the petitioner has participated in the marriage function. On a mere allegation of conspiracy particularly, for committing an offence u/s 494 will not be sufficient ground to implicate the petitioner unless some overt act on the part of the petitioner as abettor u/s 494 is established. The learned counsel for the petitioner Mr. Anturkar has cited decision of Supreme Court in Smt. Chand Dhawan vs. Jawahar Lal and ors. reported in 1992 Crime 342 wherein it has been held as follows :

In the light of the allegations made in the complaint and the materials produced in support of those allegations by the appellant before the magistrate, the issue of the process to the respondent Nos. 1 and 2 who are alleged to have solemnised the second marriage during the subsistence of an earlier valid marriage of the appellant is proper and when process has been issued, the proceedings have to continue in accordance with law against these respondents Nos. 1 and 2. So far as other respondents are concerned, it may be said that they had been unnecessarily and vexatiously roped in. The allegations in the complaint so far as these respondents are concerned are vague. It cannot be assumed that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting.

(Emphasis supplied)

3.1 As observed by the Supreme Court there are no sufficient allegations or materials that participation of other respondents like petitioner in the bigamous marriage or facilitating the marriage with the knowledge of the respondent that one of the parties have already entered into first marriage and its subsisting. Unless that particular allegation is there, other respondents other than parties to the bigamous marriage cannot be implicated. The most important thing in this case is that whether the participants had knowledge of the earlier marriage and its subsistence. In view of the allegations, relating to the petitioner contained in the complaint, is vague, and it cannot be said that he abetted to commit the offence as envisaged u/s 114 of the Indian Penal Code. Implicating petitioner is therefore, held to be vexatious or abuse of process of the Court.

In the result the writ petition is allowed.

Rule is made absolute in terms of Prayer Clause (a).

I make it clear that this will not preclude the trial Court to proceed with the trial against the other accused.

"That this Honourable Court be pleased to quash and set aside the issue process order which has been passed by the learned Judicial Magistrate, First Class, Court No. 4, Pune in Miscellaneous Application No. 181 of 1992 dated 30-6-1992.