Back
SUPREME COURT OF INDIA
B.R. GAVAI, SANDEEP MEHTA, JJ.
S. Nitheen and Others – Appellants
Versus
State of Kerala and Another – Respondents
Criminal Appeal No. 2585 of 2024, Arising Out of SLP (Criminal) Nos. 8529, 11679, 11681 of 2019
Decided On : 15-05-2024
Indian Penal Code, 1860 – Section 494 read with Section 34 – Criminal Procedure Code, 1973 – Sections 216 and 482 – Bigamy – Common intention – Framing of charge – Order framing charge is erroneous on face of record because no person other than spouse to second marriage could have been charged for offence punishable under Section 494 IPC simplicitor – However, this is a curable defect and charge can be altered at any stage as per provisions of Section 216 Cr.P.C. – It is a peculiar case wherein, complainant has not sought prosecution of appellants for charge of abetting second marriage A-1 under Section 109 IPC – Appellants are being roped in by virtue of Section 34 IPC with allegation that they had common intention to commit offence under Section 494 IPC – Involvement of accused for charge of having a common intention to commit offence under Section 494 IPC is not established by an iota of evidence – There is not even a shred of allegation by complainant that these accused, acted as witnesses to second marriage having knowledge that A-1 was already married to complainant – In absence of such allegation, prosecution of A-5 and A-7 for charge of having a common intention to commit offence under Section 494 IPC is totally unwarranted in eyes of law – Allowing proceedings of criminal case to be continued against appellants would tantamount to gross illegality and abuse of process of Court – Order framing charge as well as order rejecting revision petition and criminal miscellaneous petition preferred by accused appellants do not stand to scrutiny – Criminal proceedings quashed. (Paras 16, 17, 18, 19, 21 and 22)
Facts of the case:
Present appeals by special leave are preferred on behalf of the appellants herein for assailing final judgment and order dated 3rd July, 2019 passed by High Court of Kerala at Ernakulam, whereby, petition preferred by appellants herein seeking quashing of proceedings of Criminal Case for offences punishable under Section 494 read with Section 34 of the Indian Penal Code, 1860 was rejected.
Findings of Court:
Order dated 3rd July, 2019 passed by the High Court and all subsequent proceedings sought to be taken against the appellants herein in Criminal Case No. 791 of 2013 are hereby quashed and set aside. However, the trial of Ms. Lumina (A-1) and Saneesh (A-2) shall continue.
Result : Appeals allowed.
1. Leave granted.
2. These appeals arise out of a common order, and hence the same have been heard analogously and are being decided together by this judgment.
3. These appeals by special leave are preferred on behalf of the appellants herein for assailing the final judgment and order dated 3rd July, 2019 passed by the High Court of Kerala at Ernakulam in Crl. MC. No. 8108 of 2018, whereby, the petition preferred by the appellants herein seeking quashing of the proceedings of Criminal Case No. 791 of 2013 on the file of learned Judicial Magistrate First Class, Court-II, Attingal (hereinafter being referred to as ‘JMFC’) for the offences punishable under Section 494 read with Section 34 of the Indian Penal Code, 1860 (hereinafter being referred to as ‘IPC’) was rejected.
4. Learned JMFC after evaluating evidence led on behalf of the complainant under Section 244 of Code of Criminal Procedure, 1973 (hereinafter being referred to as ‘Cr.P.C.’) proceeded to direct framing of charges against the appellants under Section 494 IPC vide order dated 28th May, 2018. This order was challenged by the appellants by filing a Criminal Revision Petition No. 25 of 2018 before the Court of learned Sessions Judge, Thiruvananthapuram which was dismissed vide order dated 26th October, 2018. The appellants assailed the aforesaid order passed by learned Sessions Judge, Thiruvananthapuram by filing Crl. M.C. No. 8108 of 2018 in the High Court which was rejected by the impugned order. Hence these appeals by special leave.
5. The status of the accused arrayed in the complaint vis-a-vis the complainant can be enumerated as below:
Accused No. 1-Lumina B (A-1) | Legally wedded wife of complainant (Respondent No. 2 herein) |
Accused No. 2-Saneesh (A-2) | Person who entered into marriage with accused No. 1 |
Accused No. 3-Flory Lopez (A-3) | Mother of accused No. 1 [Appellant in SLP (Crl.) No. 11681 of 2019] |
Accused No. 4-Vimal Jacob (A-4) | Brother of accused No. 1 [Appellant in SLP (Crl.) No. 11679 of 2019] |
Accused No. 5-S. Nitheen (A-5) | Friends of accused Nos. 1 and 2 and are witnesses to the second marriage [Appellant in SLP (Crl.) No. 8529 of 2019] |
Accused No. 6-P.R. Sreejith (A-6) | |
Accused No. 7-H. Gireesh (A-7) |
Brief facts:
6. The complainant-Mr. Reynar Lopez (respondent No. 2 herein) married Ms. Lumina (A-1) as per the Christian ceremonies in St. Theresa’s Lisieux Church at Vellayambalam, Thiruvananthapuram, Kerala on 16th April, 2007. It is alleged that on 13th August, 2010, Ms. Lumina (A-1) contracted marriage with Saneesh (A-2) under the Special Marriage Act, 1954 before the Marriage Officer, Nemom. It is alleged that the appellants herein (A-3, A-4, A-5, A-6 and A-7) are relatives and friends of Saneesh (A-2) and Ms. Lumina (A-1) and thus they too are responsible for the offence of bigamy committed by Ms. Lumina (A-1) as they had the common intention to commit such offence.
Submission on behalf of the appellants:
7. Shri Kuriakose Varghese, learned counsel for the appellants urged that the essential ingredients of the offence punishable under Section 494 read with Section 34 IPC are totally lacking in the case setup by the complainant.
8. He pointed out from the record that four witnesses were examined on behalf of the complainant by way of pre-charge evidence namely, Reynar Lopez (himself) (CW-1), Father Laberin Yusu (CW-2) of St. May Magdelene Church, Senior Clerk Shefeek (CW-3) posted at Sub Registrar Office, Nemom, and Treasurer and Record Keeper (CW-4) of St. Therese of Lisieux Church where the marriage of Ms. Lumina (A-1) and Saneesh (A-2) took place. Learned counsel urged that none of these witnesses have spoken about the presence of appellants Vimal Jacob (A-4) and Flory Lopez (A-3) at the time of marriage of Ms. Lumina (A-1) and Saneesh (A-2).
9. Learned counsel further submitted that, insofar as S. Nitheen (A-5), P.R. Sreejith (A-6) and H. Gireesh (A-7) are concerned, they are the friends of Saneesh (A-2) and Ms. Lumina (A-2) and are simply stated to be the witnesses
Framing of charge – A curable defect can be altered at any stage as per provisions of Section 216 Cr.P.C.
The main legal point established in the judgment is that mere presence at the time of the second marriage and vague allegations of facilitating the marriage were not sufficient to attract criminal li....
The court emphasized the importance of prima facie evidence in taking cognizance of the case and the limitations of quashing criminal proceedings under Section 482 Cr.P.C.
A valid marriage under the Hindu Marriage Act can be established without 'Saptapadi'; credible evidence proving a second marriage during the subsistence of the first valid marriage constitutes bigamy....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
