Madhya Pradesh High Court
Ashish Kumar Mishra vs The State Of Madhya Pradesh on 27 November, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2024:MPHC-JBP:58253
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 27th OF NOVEMBER, 2024
MISC. CRIMINAL CASE No. 10682 of 2020
ASHISH KUMAR MISHRA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mukhtar Ahmad - Advocate for petitioners.
Shri C.K. Mishra - Govt. Advocate for State.
Shri K.K. Pandey - Advocate for respondent No.2.
ORDER
This petition has been filed by the petitioners under Section 482 of
the Code of Criminal Procedure (for brevity “CrPC) seeking quashment of
the proceedings of the complaint case registered against the petitioners vide
R.C.T. No.1374/2019 (Smt. Manju Mishra vs. Ashish Kumar Mishra and
others) instituted in respect of the offence punishable under sections 420, 494
and 323 of the Indian Penal Code (for short “IPC’).
2. The counsel for the petitioners contends that the marriage of the
petitioner No.1 was solemnised with the respondent No.2 on 28-04-1998
according to Hindu rights and customs. From the very inception, after the
marriage the attitude of the respondent No.2 towards the petitioner No.1 and
his family members was indifferent and cruel. The respondent No.2 used to
go to her parental home of and on, and created ruckus time and again.
Therefore, the petitioner No.1 filed a petition under Section 13 of the Hindu
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Marriage Act on 07-06-2001 which was ultimately allowed vide ex parte
judgment and decree dated 06-08-2002. The said judgment and decree was
assailed by the respondent No.2 by filing an appeal before this Court vide
F.A. No.555/2003 which was finally decided vide order dated 17-04-2006,
whereby the Division Bench of this Court directed the petitioner No.1 to pay
Rs.50,00,000/- to the respondent No.2 and the respondent gave an
undertaking for withdrawal of the case under Section 125 of the CrPC and
statement was recorded. It was further directed that the petitioner No.1 and
respondent No.2 would not sue each other.
3 . While disposing of the appeal finally it was observed by the
Division Bench of this Court that if the amount mentioned in the order is not
paid by the petitioner No.1, he would liable for contempt of the Court and
the first appeal would be opened for rehearing. The petitioner No.1 could not
pay the said amount of Rs.50,00,000/- to the respondent No.2 and ultimately,
the said F.A. No.555/2003 was reopened and was again decided vide order
dated 16-02-2010. The Division Bench while passing the order observed that
the notice of the petition under Section 13 of the Hindu Marriage Act was
sent to Village Sisarwada Bazar, Post – Narva, District Azamgarh (UP), but
nowhere in the entire petition it was pleaded that the said address was of the
father of the respondent No.2, where the respondent No.2 was staying.
4 . Thus, the Court in absence of necessary pleadings in the
memorandum of petition under Section 13 of the Hindu Marriage Act
proceeded to set aside the ex parte judgment and decree and again remitted
back the matter to the Family Court. The matter again came up before the
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Family Court which vide judgment and decree dated 21-05-2011 dismissed
the petition filed under Section 13 of the Hindu Marriage Act. Against the
judgment and decree dated 21-05-2011 passed in Civil Suit No.109-A/2010 a
first appeal vide F.A. No.777/2011 was filed which is pending.
6 . During pendency of the said first appeal the respondent No.2 has
filed a complaint before a trial Court under sections 420, 467, 468, 494 and
497/34 of IPC. In the said complaint the allegations have been levelled
against the present petitioner No.1, that he on the basis of forged documents
filed a petition under Section 13 of the Hindu Marriage Act and obtained an
ex parte decree of divorce. The said ex parte decree of divorce was obtained
by the petitioners in collusion with each other and immediately after
obtaining the said decree the present petitioners entered into wedlock and
thereby committed an offence under Section 494 of IPC.
6 . The counsel for the petitioners contends that the entire complaint
and ensued proceedings thereon are unsustainable on the ground that the
entire complaint is conspicuously silent as regards details of the alleged
forged documents. It is nowhere mentioned in the entire complaint as to
what documents were forged by the present petitioners. There are
allegations in paragraph No.4 that the petitioners forged documents and
thereby misled the Court and obtained an ex parte decree. It is contended by
the counsel that address of the respondent No.2 of District Azamgarh (UP)
was the address of the father of the respondent No.2 and the respondent No.2
herself has mentioned the said address in the proceedings, which is evident
from the memo of F.A. No.555/2003. The respondent No.2 did not mention
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any other address, on the contrary, she herself mentioned the same address of
Village, Sisarwada Bazar, Post – Narva, District Azamgarh (UP).
7 . It is contended by the learned counsel for the petitioners that there
was no forgery whatsoever, and accordingly the complaint was not
maintainable. The counsel has also submitted that the petitioner No.2 cannot
be prosecuted for the offence under Section 494 of IPC, inasmuch as during
the currency of the first marriage, if the second marriage is performed by the
husband, only husband can be prosecuted, but not the second wife. It is
contended by the counsel that in the present case, an ex parte decree was
passed on 06-08-2002 and the marriage of the petitioner No.1 with the
petitioner No.2 was solemnized on 21-04-2003. Therefore, after the period
of filing of an appeal the petitioners No.1 and 2 entered into wedlock and
therefore, there was no illegality or irregularity and thus cognizance under
Section 494 of the IPC could not have been taken. The learned counsel
while placing reliance on the decisions rendered in the case of 2002 (2)
MPHT 374 and also in Prof. Chintamani Malviya vs. High Court of M.P.,
(2018) AIR SCW 2656 submits that the proceedings pending against the
petitioners deserve to be quashed.
8 . Per contra, the learned counsel for the respondent No.2 submits that
the present petition filed under Section 482 of the CrPC by the petitioners is
not maintainable. It is contended by the learned counsel that subsequently
cognizance has been taken by the Judicial Magistrate First Class vide order
dated 10-01-2019, but the order taking cognizance has not been assailed by
the present petitioners. Therefore, in absence of challenge to the said order,
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the present petition filed under Section 482 of the CrPC is not maintainable.
The counsel further submits that the complaint filed against the petitioners
speaks volumes about the mal-intention on the part of the respondent behind
filing of a petition under Section 13 of the Hindu Marriage Act. The petition
was filed in a preplanned manner while projecting the address of the
respondent No.2 to be of Village – Sisarwada Bazar, Post Narva, District
Azamgarh (UP), whereas the respondent No.2 was not residing there and
accordingly, the concerned Court was persuaded to pass an ex parte decree,
which was later on rightly set aside by this Court in the first appeal.
9 . It is contended by the learned counsel for the respondent No.2 that
the findings so arrived at by the Division Bench of this Court in the order
dated 16-02-2010, leaves no debatable issue that the petitioners wrongly
mentioned the address of District Azamgarn (UP) without there being any
pleadings and this act was unlawful. It is contended by the counsel that
mentioning of incorrect address in the memo of petition amounted to forgery
and resultantly, the complaint was rightly filed against the petitioners and no
interference with the same is warranted.
10. The counsel for the respondent No.2 in support of his contention
has placed reliance on the decisions rendered in the cases of Gopal Lal vs.
State of Rajasthan, AIR 1979 SC 713; Md. Allauddin Khan vs. State of
Bihar and others, AIR 2019 SC 1910; Sau. Kamal Shivaji Pokarmekar vs.
State of Maharashtra and others, AIR 2019 SC 847; Rashmi Chopra vs. State
of Uttar Pradesh and another, AIR 2019 SC 2297; Dr. Lakshman vs. State of
Karnataka and others, (2019) 9 SCC 677; Priti Saraf and another vs. State of
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NCT of Delhi and another, AIR SC 1531; and Baba Natarajan Prasad vs. M.
Revathi, AIR 2024 SC 3348 . The contention of the learned counsel for the
respondent No.2 is that this Court cannot go into appreciation of evidence
and any interference with the complaint or the ensuing proceedings is not
warranted.
11. No other point is pressed or argued by the parties.
12. Heard the submissions and perused the records.
13. A perusal of the record reflects that the marriage of the petitioner
No.1 and respondent No.2 was solemnized on 28-04-1998. The petitioner
No.1 then filed a petition under Section 13 of the Hindu Marriage Act and an
ex parte decree of divorce was passed on 06-08-2002. The said decree was
assailed before this Court and ultimately the said decree was set aside by this
Court and the matter was remitted back to the concerned Court. The trial
Court again dismissed the petition filed by the petitioner No.1/husband and
the said dismissal is the subject-matter of F.A. No.777/2011 which is still
pending consideration before this Court.
14. As the ex parte decree was passed on 06-08-2002 the petitioners
herein, after expiry of stipulated period of filing of an appeal entered into
wedlock on 21-04-2003. Thus, by filing the complaint there are two-fold
allegations against the petitioners firstly, in a preplanned manner a petition
under Section 13 of the Hindu Marriage Act was filed mentioning incorrect
address of the respondent No.2, as a result of which the Court proceeded to
pass an ex parte decree. Secondly, after passing of the ex parte decree the
petitioners entered into wedlock. Such second marriage attracted penal
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provisions as stipulated in Section 494 of the IPC.
15. In order to deal with the aforesaid allegations so levelled in the
complaint, it is apt to take into consideration the contents of the complaint.
A perusal of the complaint reflects that in paragraph No.2 the allegation
against the petitioner No.1 was levelled that he used to manhandle the
complainant under the garb of demand of dowry. Further, the allegations
were levelled that behaviour of the petitioner No.1 towards the respondent
No.2 and the child was indifferent. The petitioner No.1 had illicit relations
with the maid working in the house. The petitioner No.1 in July, 2001
dropped the respondent No.2 to her parent’s place. In paragraph No.4 of the
complaint it was averred that the petitioner No.1 herein, prepared forged
document and while misleading the concerned Court a petition for divorce
was filed. In the said petition address of the parents of the complainant was
mentioned. As per paragraph No.5, the said petition for grant of decree of
divorce was dismissed. In paragraph No.6 it was asseverated that during
pendency of the litigation, on the basis of forged document the petitioners
entered into wedlock and the said act amounted to adultery. They also gave
birth to two offspring. Thus, the complaint was filed seeking prosecution
under the aforesaid section.
16. In support of the complaint the statement of the
complainant/respondent No.2 was also recorded under Section 200 of the
CrPC. Apart from the statement of the complainant, statement of her son
was also recorded. The entire complaint and the statements so recorded
nowhere reveal as to which document was forged by the present petitioners.
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There is no detail of any document in the complaint which according to the
complainant was forged. Paragraph No.4 of the complaint reveals that the
complainant sought to allege that mentioning of her parent’s address in the
petition filed under Section 13 of the Hindu Marriage Act was a fraudulent
act and the same was an act of forgery. Such averments made in paragraph
No.4 cannot be construed as constituting any allegation of forgery. In the
same paragraph, undisputedly the complainant mentioned that the address of
the complainant’s parents of District Azamgarh (UP) was mentioned.
Mentioning of the address of the parents of the complainant in the petition
filed under Section 13 of the Hindu Marriage Act cannot by any stretch of
imagination be termed as an act of forgery.
17. In order to deal with the contention of the counsel for the
respondent No.2 that filing of the said petition was with an oblique motive
and intentionally an address was mentioned on which the respondent No.2
was not residing. If paragraph 4 of the complaint is perused, the complainant
herself stated in last two lines as follows :
”4. यह क, त प ात अनावेदक . 1 ने धोखाघड करने क
िनयत से छल कपट पूवक झूठे द तावेज तैयार कर माननीय
यायालय को गुमराह करने क िनयत से परवा दनी से
तलाक हे तु एक तलाक का वाद कुटु ब यायालय जबलपुर म
तुत कर दया, और तुत वाद म प रवा दनी का पता
ससुराल का ह िलखवाया ।”
18. Aforesaid averments clearly reveal that it is the case of the
complainant herself that in July, 2001 she was manhandled and dropped by
the petitioner No.1 to her parents’ house. It is undisputed that the petition
under Section 13 of the Hindu Marriage Act was filed on 07-08-2001 i.e. the
next month when the petitioner No.1, according to the complainant, dropped
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her at her parent’s place. Therefore, considering the entire averments so
made in the complaint and also the statement of the complainant witnesses
recorded under Section 200 of the CrPC, in the considered view of this
Court, none of the alleged acts constitute the offence as alleged in the
memorandum of complaint. Secondly, the trial Court has framed charge
against the petitioner No.2 under Section 494 of the IPC.
19. At this juncture it is useful to refer Section 494 of the IPC which
reads as under :
“494. Marrying again during life-time of
husband or wife-
Whoever, having a husband or wife living,
marries in any case in which such marriage is
void by reason of its taking place during the
life of such husband or wife, shall be
punished with imprisonment of either
description for a term which may extend to
seven years, and shall also be liable to fine.
Exception.–This section does not extend
to any person whose marriage with such
husband or wife has been declared void by a
Court of competent jurisdiction,
nor to any person who contracts a marriage
during the life of a former husband or wife, if
such husband or wife, at the time of the
subsequent marriage, shall have been
continually absent from such person for the
space of seven years, and shall not have been
heard of by such person as being alive within
that time provided the person contracting
such subsequent marriage shall, before such
marriage takes place, inform the person with
whom such marriage is contracted of the real
state of facts so far as the same are within his
or her knowledge.”
20. A perusal of Section 494 of the IPC clearly reflects that if the
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husband or wife during subsistence of marriage enters into second wedlock,
such husband and wife would be liable to be prosecuted for the offence of
bigamy. Section 494 of the IPC does not stipulate that even the second wife
or the husband would also be liable to be prosecuted. The Legislature has
not made the second wife or husband liable for penal action, if it is alleged
that the second marriage was performed during subsistence of the first
marriage. The trial Court was required to appreciate that as to how the
petitioner No.2 could have been prosecuted under Section 494 of the IPC.
21. A Bench of the High Court for the State of Telangana in the case
o f Shaheed Naaz vs. State of Telangana, 2023 SCC OnLine TS 3536 in
paragraph No.11 held as under :
“11. As per the contents of Section 494 of IPC, it is evident that it
attracts to a person who has married during the life time of wife or
husband. Therefore, the said offence attracts only to Accused
No.1 and not to the second wife or her family members. Further,
the contents of complaint do not attract the petitioners/accused
Nos.2 to 4 for the alleged offence under Section 498-A of IPC.
Therefore, the Court is of the considered opinion that it is a mere
abuse of law for being tried the petitioners/accused Nos.2 to 4
before the trial Court and the proceedings against the petitioners
are liable to be quashed.”
22. The High Court of Karnataka in Smt. Revathi vs. Smt. Netravathi,
2023:KHC:28037 held thus :
“8. A perusal of the above, indicates beyond doubt that a person
who can be prosecuted under Section 494 of IPC is the erring
husband or wife who marries again during the lifetime of his or
her spouse and during the subsistence of the marriage. The
petitioner herein who was arrayed as accused No.2 on the ground
that she was the second wife of accused No.1 could certainly not
be prosecuted for an offence under Section 494 of IPC. In that
view of the matter, the criminal prosecution initiated against the
petitioner/accused No.2 cannot be continued as that would result
in an abuse of the process of law.”
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23. The aforesaid decisions as well as the Scheme of Section 494 of
the IPC leaves no scintilla of doubt that the second wife cannot be prosecuted
under Section 494 of the IPC, if the husband has entered into second wedlock
in currency of the first marriage. Thus, in the considered view of this Court,
the trial Court fell in error while proceeding against the petitioner No.2 under
Section 494 of the IPC as well.
24. It is trite law that the inherent powers under Section 482 of the
CrPC can be exercised where the complaint and complainant’s statements on
their face value do not constitute any offence and when such a complaint has
been filed in order to harass and humiliate the other side with oblique
motive. The complaint in question has been filed on 29-05-2018 by the
complainant and if the complainant was aware about the second marriage of
the petitioner No.1, what fettered her from filing the complaint immediately,
is also an unanswered issue. Therefore, reasonable interference can be drawn
that after a lapse of years together, the complaint was filed with an oblique
motive.
25. The Apex Court in the case of State of Haryana Vs. Bhajan Lal,
AIR 1992 SC 604 has laid down the following parameters for quashing the
FIR:-
“(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
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complaint and the evidence collected in support of the same do not
disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order
of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the Act concerned (under which a
criminal proceeding is instituted) to the institution and continuance
of the proceedings and/or where there is a specific provision in the
Code or the Act concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge.”
26. In view of the aforesaid enunciation of law, if the facts in the
present case, are tested on the anvil of the law laid down therein, it is
luminescent that the complainant and the statement of the complainant’s
witnesses in their entirety, do not reveal commission of any offence under
the alleged offence. Therefore, this Court is of the considered view, that the
complaint and entire proceedings so instituted against the petitioners deserve
quashment. The judgments relied upon by the respondent No.2 are
distinguishable on facts, inasmuch as in the case in hand, the complaint as
well as statements of complainant’s witnesses lack in necessary averments
regarding commission of the offence under the aforesaid section.
27. Resultantly, the present petition is allowed. The complaint case
vide RCT No.1374/2019 (Smt. Manju Mishra vs. Ashish Kumar Mishra and
others) pending in the Court of Judicial Magistrate First Class, Jabalpur and
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ensued proceedings thereon stand quashed and petitioners stand discharged.
Bail bonds, if any, also stand discharged.
(MANINDER S. BHATTI)
JUDGE
ac
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