{"id":72372,"date":"2002-03-08T00:00:00","date_gmt":"2002-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kulwant-singh-and-ors-vs-surjit-kaur-on-8-march-2002"},"modified":"2015-06-07T23:50:25","modified_gmt":"2015-06-07T18:20:25","slug":"kulwant-singh-and-ors-vs-surjit-kaur-on-8-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kulwant-singh-and-ors-vs-surjit-kaur-on-8-march-2002","title":{"rendered":"Kulwant Singh And Ors. vs Surjit Kaur on 8 March, 2002"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Kulwant Singh And Ors. vs Surjit Kaur on 8 March, 2002<\/div>\n
Equivalent citations: 2002 CriLJ 3443<\/div>\n
Author: A B Gill<\/div>\n
Bench: A B Gill<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Amar Bir Singh Gill, J.<\/p>\n
1. The present petition under Section 482, Cr.P.C. is for quashing of summoning order dated 16-3-1989, Annexure P-2 and order dated 17-10-1990, Annexure P-3, passed by revisional Court confirming the order, Annexure P-2.\n<\/p>\n
2. Briefly stated the facts of the case are that the petitioners have been arraigned as accused in a complaint, Annexure P-1, filed by Surjit Kaur-respondent under Section 494 read with Section 109 of Indian Penal Code wherein she has alleged that she is lawful wedded wife of Kulwant Singh-petitioner No. 1 and she had been living with him for many years. However, no child was born to them. He married another lady Parsin Kaur but she died under suspicious circumstances. Thereafter, the complainant was not allowed to live in the matrimonial house and she used to reside separately. It has been further alleged in the complaint that the complainant came to know through Gurbhajan Singh, resident of Pakhan that Kulwant Singh-petitioner No. 1 had fraudulently got her plot mutated in his own name and then she came to village Tarori and learnt that Kulwant Singh-petitioner No. 1 at the instance of his co-petitioners, had remarried Kuldip Kaur knowing fully well that the complainant is his lawful wedded wife and she is alive. This fact came to her knowledge only in September or October, 1986. Thereafter, she made inquiries and came to know that the marriage between the two was performed in the year 1978 at Tarori in the presence of other co-accused i.e. the present petitioners and, thus, they have committed offence punishable under Section 494 read with Section 109, I.P.C.\n<\/p>\n
3. The complainant produced preliminary evidence and on its consideration, learned Magistrate passed the impugned order dated 16-3-1989 summoning the present petitioners to stand trial for the offence committed under Section 494 read with Section 109, I.P.C. The petitioners challenged the order, Annexure P-2, before the revisional Court which, vide order dated 17-10-1990, Annexure P-3, dismissed the revision-petition. Both the orders have given rise to the filing of the present petition under Section 482, Cr.P.C.\n<\/p>\n
4. The counsel for the parties have been heard at length and record has been perused.\n<\/p>\n
5. The orders of the Courts below have been impugned mainly on the ground that the Courts erred in holding that prima facie case for the offence under Section 494 read with Section 109, I.P.C. was made out against the petitioners. The complaint was belated one which was filed after 9 years of the alleged second marriage. There was no reference to the essentials i.e. necessary ceremonies for the alleged marriage of Kulwant Singh-petitioner No. 1 with Kuldeep Kaur. The revisional Court, in its order dated 17-10-1990, was of the view that at the stage of preliminary evidence, detailed allegations of the offence were not required to be made and the authorities cited before it were not relevant. According to it, at the stage of summoning, the Magistrate was required to examine the provisions of Section 204, Cr.P.C. to find whether there were sufficient grounds for proceeding and at the other stage, prosecution is to produce evidence which inspired confidence beyond all reasonable doubt. As such, there was no infirmity in the summoning order. A perusal of complaint, Annexure P-1, would show that it contained bald allegations of second marriage during the lifetime of Surjit Kaur-re-spondent. It does not refer to time, day and place of second marriage much less if it was a valid marriage and essential ceremonies were gone into and in whose presence it was performed or who conducted the rituals. The offence under Section 494, I.P.C. has been subject of deliberation for more than once by this Court and the Apex Court as well in different precedents. The expression ‘marriage’ appearing in Section 494 refers to performance of a valid marriage. The Apex Court in Gopal Lal v. State of Rajasthan, AIR<\/a> 1979 SC 713 (714) : 1979 Cri LJ 652 observed that “when a spouse contracts a second marriage while the first marriage is still subsisting the spouse will be guilty of bigamy under this section, if it is proved that the second marriage was a valid one in the sense that necessary ceremonies required by law or by custom have been actually performed.” It is, thus, clear that where the essential ceremonies, according to law governing the parties to constitute a marriage are not performed, there is no marriage at all and such a case does not fall within the ambit of Section 494, I.P.C. The law laid down by the Apex Court in the aforesaid case has repeatedly been followed by this Court in Udha Singh alias Udhapal Singh v. Mohinder Kaur, 1991 (3) RCR 646; Somkar Singh v. Smt. Bimla Devi, 1992 (1) RCR 268; Tej Kaur v. Amarjit Kaur, 1993 (1) RCR 310; P. Satyanarayana v. P.Mallaiah,<\/a> 1996 (6) SCC 122 : 1996 AIR SCW 4000; Gomti v. Bahadur, 1997 (2) RCR 705; Tayab Hussain v. Kanchan Sharma, 1997 (2) RCR 707; Sham Singh v. Sarbjit Kaur, 1998 (3) RCR 784 : 1998 Cri LJ 4788; Anand Parkash v. Rama Devi, 1998 (3) RCR 580; K. Chokka Rao v. A. Veerabhadra Rao, 1999 (2) RCR 190 : 1999 Cri LJ 1097 and G. Sagar Suri v. State of U.P., 2000 (1) RCR 707: 2000 Cri LJ 824.\n<\/p>\n
6. As already indicated in the complaint, there is not an iota of reference of any ceremony of a valid marriage under the customs applicable to the parties i.e. they being the Sikh, the performance of marriage by Anand Karaj was not referred at all. In the preliminary evidence as well, complainant Surjit Kaur appeared as P.W. 1. She referred to all the informations based on hearsay having come to know from Banta Singh of another village that the accused has now married Kuldip Kaur. P.W. 2 is Gurbachan Singh. He stated that all the present petitioners knew that Surjit Kaur is legally wedded wife of Kulwant Singh who is still alive and in spite of that they participated in his marriage and he and Banta Singh asked them not to do so. Banta Singh appeared as P.W. 3. He stated that he was told by Gurbhajan Singh that Kulwant Singh had solemnized marriage with Kuldip Kaur in the lifetime of Surjit Kaur. He visited the house of Kulwant Singh and came to know that Kuldip Kaur was living in the house of Kulwant Singh which means that he did not himself witness any marriage whereas, according to the complainant and Gurbhajan Singh they saw and objected to the participation of the petitioners in the marriage. Tirlok Singh P.W. 4 is the real brother of the complainant who stated that Kulwant Singh had solemnized the marriage with Kuldip Kaur during the lifetime of his sister against her consent but he also did not say any thing about the performance of religious ceremonies in the marriage. Even Gurbhajan Singh, who was recalled to state something more; stated that in the year 1977, he saw Kulwant Singh getting married to Kuldip Kaur he had informed Banta Singh. The preliminary evidence, thus, sans any reference to the performance of a valid Anand Karaj marriage and as such the ingredients of offence under Section 494, I.P.C. are not fulfilled in this case. 7. The other allegation that in the voter list, Kuldip Kaur is shown to be the wife of Kulwant Singh is also of no consequence. Even if Kulwant Singh admits of having married Kuldip Kaur or even if she is found to be living with him, unless and until a valid marriage between them is proved to have been performed, they cannot be held guilty of offence under Section 494, I.P.C. In P. Satyanarayana’s case (supra) where the appellant was accused of an offence under Section 494, I.P.C. and even he had admitted the second marriage, the trial Court recorded the prosecution case and came to the conclusion that there was no legal evidence to prove the factum of marriage. The High Court set aside the order of acquittal mainly on the ground that there was no admission of the husband and ordered retrial. In the appeal, Supreme Court held as under (at page 4001 of AIR SCW):–\n<\/p>\n
 The High Court was in error in upsetting the well considered order of the trial Magistrate requiring due ceremonies of the alleged second marriage being proved so as to satisfy the tests laid down by the Supreme Court. The admission of the husband could at best be understood to mean that the first appellant had taken a wife, but that admission did not necessarily mean that he had taken the second wife after solemnising a Hindu marriage with her after performing due ceremonies for the marriage. Such plea, which he need not have even entered upon, and which was ignorable by the Court, did not absolve the prosecution to otherwise prove its case, that the marriage in question was performed in a regular way so as to visit him with penal consequences.\n<\/p>\n
8. Another aspect of this case, it is clear that alleged marriage took place between Kulwant Singh and Kuldip Kaur in the year 1977 or 1978 and complaint. Annexure P-1, was filed on 18-2-1987 i.e. after lapse of about 9 years. In the instant case, even if the allegations of complainant that she was turned out of the house by her husband-Kulwant Singh and she was not living in that village are believed to be true, it cannot be said that she was not aware of the family affairs of her husband and it was not in her knowledge that he had remarried meanwhile. It appears that she filed a complaint only when a dispute arose over the mutation of a plot in the name of Kulwant Singh allegedly belonging to the complainant. She possibly may not have complained of bigamy against Kulwant Singh but for that dispute and, thus, on her taking the steps for raking up the stale matter which, in any case, offends Article 21 of the Constitution which guarantees the speedy trial of a person accused of an offence, the continuation of such a complaint would nevertheless be abuse of the process of Court. Relying upon the Full Bench decision of Patna High Court in Madheshwarchari Singh v. State of Bihar, 1990 (3) RCR 302 (FB), this Court in Somkar Singh’s case (supra) observed that at some moment of time even a criminal should get his piece. The summoning order passed by the learned Magistrate itself would indicate non-application of mind as the essential ingredients of Section 494, I.P.C. were not made out nor referred to in the evidence of the complainant. Summoning order is not a mere formality. Learned Magistrate is required to keep in mind whether the allegation in the complaint and the materials in its, support disclose the Commission of an offence, then the matter should proceed, but if it does not or there are features from which inference may be drawn that the trial will be an exercise in futility or is otherwise mala fide, an innocent person should not be subjected to the hardship and humiliation of a full dress trial. Admittedly, at the stage of process of summoning, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence before him and he is required to prima facie satisfy whether there are sufficient grounds for proceeding against the accused. The sufficient grounds referred to in Section 204, Cr.P.C. mean and imply that a prima facie case is made out against the accused. Mere allegation of commission of offence, unless its ingredients constituting the offence are referred to or brought on record, it cannot be said that prima facie case for such an offence is made out. As already indicated above, since the complainant and her evidence did not refer to performance of a valid marriage by Kulwant Singh second time with Kuldip Kaur, no prima facie case, in the circumstances, was made out for the issuance of any process. At the same time, it also needs mentioning that for an offence under Section 494 read with Section 109, I.P.C, mere presence of a person at the time of marriage itself will not amount.to abetment of marriage unless the person attending the marriage knows the existence of earlier lawfully wedded wife alive of the person performing the marriage. Since there was no mention of any performance of essential ceremonies of valid Anand Karaj marriage between Kulwant Singh and Kuldip Kaur much less participation of other co-petitioners in such ceremonies of the second marriage, the mere presence at that time will be of no consequence.\n<\/p>\n
9. In the light of what has been stated above, the petition deserves acceptance. Accordingly, the petition is allowed. Impugned orders dated 16-3-1989, Annexure P-2, passed by Judicial Magistrate 1st Class, Karnal and dated 17-10-1990, Annexure P-3, passed by Additional Sessions Judge, Karnal are quashed so also complaint, Annexure P-l, as well as the proceedings thereon.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Kulwant Singh And Ors. vs Surjit Kaur on 8 March, 2002 Equivalent citations: 2002 CriLJ 3443 Author: A B Gill Bench: A B Gill ORDER Amar Bir Singh Gill, J. 1. The present petition under Section 482, Cr.P.C. is for quashing of summoning order dated 16-3-1989, Annexure P-2 and order dated 17-10-1990, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-72372","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nKulwant Singh And Ors. vs Surjit Kaur on 8 March, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kulwant-singh-and-ors-vs-surjit-kaur-on-8-march-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kulwant Singh And Ors. vs Surjit Kaur on 8 March, 2002 - 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