HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.4031 of 2009 DATED:12.08.2009 Between: K.Sailesh and others .. Petitioners And The State rep., by its Public Prosecutor, High Court of A.P., Hyderabad and another .. Respondets HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.4031 of 2009 ORDER: Heard Smt.G.Shobha, learned counsel for the petitioners and Sri P.Vinod Kumar, learned counsel for the second respondent and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor for the first respondent. The First Information Report in Cr.No.269 of 2009 of Amberpet Police Station, Hyderabad was registered on the report of the second respondent alleging that she was married on 06.05.2009 to the first petitioner at Sri Venkateshwara Swamy Temple at Jubilee Hills and that on going to the marital home, she came to know that the first petitioner was already married. The second respondent further alleged that since then, the first petitioner, second petitioner-his mother, third petitioner-first wife and the brothers of the first petitioner and their wives started harassing her physically and mentally and also attempted to kill her after obtaining her signatures on a stamp paper. She further claimed that the petitioners are sending rowdies to harm her though she escaped from their clutches. The Inspector of Police, Amberpet Police Station registered a crime under Sections 494 and 498-A of the Indian Penal Code and is investigating into the same. At that stage, the petitioners came up with this Criminal Petition claiming that the first petitioner was married to the third petitioner ten years back and that the provisions of Sections 498-A and 494 of the Indian Penal Code are not attracted in case of second respondent, who claims only to be the second wife married to the first petitioner, while the first marriage is subsisting. The petitioners also claim that the petitioners 4 to 9/accused Nos.4 to 9 are living separately and have nothing to do with the petitioners 1 to 3 or the second respondent. They, therefore, desired that the further proceedings against them be quashed. Smt.G.Shobha, learned counsel for the petitioners relied on Smt. Yamunabai Anantrao Adhav V. Anantrao Shivram Adhav and another[1] wherein it is stated about a marriage with a person having a living spouse governed by the Hindu Marriage Act holding the same to be null and void and consequently disentitling the lady married to such a person from claiming any maintenance under Section 125 of the Code of Criminal Procedure. A perusal of the decision makes it clear that the subsistence of a valid first marriage by the time the woman was married again to a person from whom she was claiming maintenance was an admitted fact in that case. In the present case, the legality, validity and subsistence of the marriage between the first petitioner and the third petitioner or the marriage between the first petitioner and the second respondent are matters which are still open to investigation by the statutory investigating agency and giving any finding herein that the marriage between the first petitioner and the second respondent is null and void will be beyond the limitations of such enquiry as laid down by the Apex Court prohibiting the High Court from coming to any conclusions of fact on the reliability, genuineness and acceptability of any matters of evidence by conducting a deep probe into disputed questions of fact. Sri P.Vinod Kumar, learned counsel for the second respondent, contended that the provisions of Section 494 of the Indian Penal Code will be attracted even if the allegations of the petitioners are true and insofar as Section 498-A of the Indian Penal Code is concerned the same refers only to a married woman and not to the legality or validity of the marriage. These issues also being dependent upon the factual question about the legality, validity and subsistence of the marriages of either accused No.3/petitioner No.3 or the second respondent with the first petitioner, any expression of opinion may be improper or premature. On the allegations made in the First Information Report, ex facie alleging the things to have happened in a manner indicating the petitioners 2 and 3 also to be with the first petitioner in the sequence of events, it will not be in the interests of justice to nip the investigation in the bud insofar as the petitioners 1 to 3 are concerned. However, insofar as petitioners 4 to 9/accused Nos.4 to 9 are concerned, they claim that they are married and that they are living separately, which does not appear open to question as a matter of fact and the allegations in the First Information Report do not even state the identity of the petitioners 4 to 9 separately, leave alone make any specific allegations against any of them concerning any culpable conduct vis-à-vis the second respondent. The allegations in the written report of the second respondent leading to the registration of the crime are general and omnibus in nature either in respect of the involvement of the petitioners 4 to 9 or in respect of any overt acts committed by them and in the light of the Apex Court deciding that such omnibus allegations roping in all the members of the husband’s family cannot constitute a sufficient ground for allowing the criminal proceedings to continue against such relatives, the further criminal proceedings against the petitioners 4 to 9 should be discontinued to avoid any abuse of process of law. The matter is still under investigation and the investigating agency will be at liberty to go into the involvement of any of the petitioners 1 to 3 against the second respondent and there being any culpable conduct in respect of any acts or omissions that can be considered as an offence under law, about which no expression of opinion should be made herein. However, in view of their age, the prohibition against the arrest of the petitioners 2 and 3 can continue till the filing of the report by the police under Section 173(2) of the Code of Criminal Procedure before the Court of competent jurisdiction and in case of the investigating agency filing such a report under Section 173(2) of the Code of Criminal Procedure making any allegations of committal of any offence against petitioners 2 and 3 also, the said Court shall, on their surrender before the Court, consider on merits as per law, forthwith on the same day on which they surrender, any request for release of the petitioners 2 and 3 on bail, subject to appropriate conditions. Subject to the above observation, the further proceedings in Cr.No.269 of 2009 of Amberpet Police Station, Hyderabad against the petitioners 4 to 9/accused Nos.4 to 9 are quashed and the Criminal Petition is dismissed insofar as the petitioners 1 to 3 are concerned. _____________________ G. BHAVANI PRASAD, J 12th August 2009 KH [1] AIR 1988 SUPREME COURT 644