THE HON'BLE SRI JUSTICE P.S.NARAYANA Criminal Petition No.6803 of 2007 19th March, 2010 Between :- M.D.Prabhakar & another .. Petitioners And Kanisetty @ Panda Jyothi Durga Bhavani And another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA Criminal Petition No.6803 of 2007 ORDER:- Heard Sri M.Christopher representing Sri T.Pradyumna Kumar Reddy, the learned Counsel representing petitioners –A.13 and A.14, Sri Raghu, the learned Counsel representing the 1st respondent and the learned Additional Public Prosecutor representing the 2nd respondent. 2. The Criminal Petition is filed under Section 482 of the Criminal Procedure Code (hereinafter in short referred to as ‘the Code’ for the purpose of convenience) by A.13 and A.14 in C.C.No.170/2007 on the file of the II-Additional Chief Metropolitan Magistrate, Vijayawada, Krishna District, praying for quashing of the proceedings. 3. The 1st respondent is a practicing Advocate at Vijayawada. A.1 also is a practicing Advocate and they belong to different castes. On 13-5-98 they were married. The parents of both the parties did not attend the marriage. Out of their wed-lock, a male child was born on 19-10-99. Gradually the parents of A.1 developed intimacy with the 1st respondent. A.1 and his family also used to visit the parents of A.1 along with the child. After some time, A.1 started harassing the 1st respondent along with the active support of his parents and relatives and demanded Rs.5 lakhs as dowry. Thereafter, some disputes arose between them and A.1 filed an application for divorce before the Family Court. On 13-6-2001, A.1 married A.2 at Dwaraka Tirumala. A.8 signed as guardian and the names of the petitioners were mentioned in the Wedding Card with best compliments. 4. Sri Christopher representing Sri T.Pradyumna Kumar Reddy, the learned Counsel representing the petitioner - A.13 and A.4 had pointed out to the allegations made in the complaint and would maintain that the mere mentioning of these names in the Wedding Card with best compliments may not fall either under Section 494 I.P.C. or Section 109 I.P.C., hence the proceedings so far as they relate to A.13 and A.14 are to be quashed. 5. The learned Counsel representing 1st respondent and also the learned Additional Public Prosecutor however would maintain that inasmuch as the offences are under Sections 494 read with 109 I.P.C., this may not be a fit case to be interfered with at this stage under Section 482 of the Code. 6. This Court had carefully gone through the specific allegations made in the complaint. It is stated that “an invitation card was also printed and distributed to the invitees, the said invitation card was also published in the names of A.3 and A.4 and with best compliments from A.13 and A.14 and others”. No doubt, further it is stated as hereunder:- “At present, accused No.1 and 2 are residing together as wife and husband and the accused No.2 also gave birth to a female baby on 16-10-2006 at Sri Sarada Nursing Home, Vijayawada. Accused No.1 and 2 and all other accused are well aware about the consequences of contracting the 2nd marriage during the life time of the other spouse. They have no respect towards law. In fact, A.1, A.13 and A.14 are being practicing Advocates, accused No.2 is working in Judicial Department are well aware the subsistence of the previous marriage of A.1 with complainant and A.2 with the above said K.Praveen Kumar and they know fully well about the consequences of the contracting the 2nd marriage with another during the life of the other spouse.” These are the specific allegations made in the complaint as far as A.13 and A.14 – the petitioners in the present Criminal Petition are concerned. 7. Section 494 I.P.C. reads as hereunder:- “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, is 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.” 8. Section 109 I.P.C. reads as hereunder:- “Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment:- Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation:- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.” 9. Sri Christapher, the learned Counsel placed strong reliance on the decision in C.S.VARADACHARI v. C.S.SHANTI[1] wherein at paras 4 and 7 the learned Judge observed as hereunder:- “In support of his contentions, the learned counsel for the petitioners relied on the decision reported in Shriram v. U. P. State (AIR 1975 SC 175), where it was held : - "In order to constitute abetment, the abettor must be shown to have 'intentionally' aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of S. 107. Intentional aid and therefore active complicity is the gist of the offence of abetment under the third paragraph of S. 107" In Krishnaswami Naidu, (1928) ILR 51 Mad 263) it was held – "To sustain a conviction under S. 114, I. P. C. the abetment must be complete apart from the mere presence of the abettor. " To the same effect it was held in Ram Ranjan roy v. Emperor (1915) ILR 42 Cal 422), as follows- "A conviction under S. 114, I. P. C. cannot stand where the abetment charged necessarily requires the presence of the abettor. To come within the section, the abetment must be complete apart from the mere presence of the abettor. " In Malanrama v. State, (ILR 1958 Bom 700), it was held – "Held (i) that, in the circumstances of the case, the mere presence of the accused at the ceremony knowing that the offence of bigamy was being committed and the throwing of holy rice over the couple did not amount to abetment of bigamy notwithstanding that accused No. 3 had distributed pan after the ceremony. " On that ground, in the above case, the conviction and sentence against accused 2 to 8 and 11 to 14 were quashed, as the allegation that they were present and threw holy rice over the couple is not sufficient to constitute the offence of abetment of bigamy. In Muthammal v. Maruthathal, (1981 Mad LW (Cri) 80) Sathar Sayeed, J. held : - "The definition of abetment in S. 107 I. P. C. includes not merely instigation, which is the normal form of abetment, but also conspiracy and aiding, and those three forms of abetment are dealt with, in the proviso to S. 111, I. P. C. Investigation must have reference to the thing that was done. By mere association of the accused persons in this case, who are charged with an offence of abetment of the principal offender, in the absence of any material to show that there was instigation by the petitioners or that there was any intention either in aiding or in the commission of the offence committed by the first accused, it cannot be said that they have committed an offence of abetment. " Consequently, the proceedings framing charge for abetment of bigamy against some of the accused were quashed in that case. In Karuppiah Servai v. Nagavalli Ammal, (1982 Mad LJ (Cri) 19) M. N. Moorthy, J. held – "Held, further that mere association of the persons who are charged for an offence of abetment of the principal offender in the absence of any material to show that there was an instigation by the petitioners or that there was any intention either in aiding or in commission of the offence, it cannot be said that they have committed an offence of abetment. On this principle the conviction of petitioners 3 and 4, that is, accused 3 and 4, cannot be sustained. In all probability they would have been passive witnesses to what A. 1 and A. 2 were doing." In the instant case, except stating that these accused 3 to 8 were present and they threw sacred rice over the couple and blessed them there is absolutely nothing to show that they intentionally aided the commission of the offence of bigamy. Even in respect of the allegation that they threw holy rice, blessed the couple and gave presents, the complainant has not examined any witness to the marriage and the alleged information was said to have been given by the witness cited in the complaint to her father who in turn conveyed the same to the complainant. Hence, I find much force in the contention of the learned counsel for the petitioners in this regard. It was further held – “Taking all the allegations in the complaint to be true, without adding or subtracting anything at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court under S. 482, Cr. P. C." It has to be stated that the ratio laid down in the above case is not applicable to the facts of this case. That was a case instituted by the Deputy Chief Controller of Imports and Exports, against the accused persons for offences under S. 120-B, I. P. C. and S. 5 of the Imports and Export (Control) Act 18 of 1947 and cognizance was taken and summonses were issued to the accused persons. In these circumstances, their Lordships held that at that stage the court is concerned only with the allegations made in the complaint and that the truth or otherwise is not the criterion to quash the proceedings. On a careful analysis of the entire materials placed before me, I am of the view that the allegations levelled against these petitioners do not prima facie constitute the offence so as to warrant cognizance of the offence of abetment of bigamy under S. 494 read with S. 114, I. P. C. against the petitioners and further there is also no legal evidence to connect these petitioners with the alleged crime also. Hence, by allowing the proceedings to continue against the petitioners, it would be nothing but an abuse of process of court and harassment to the petitioners. For all these reasons, I am of the view that the proceeding against these petitioners is liable to be quashed. 10. In MANJULA v. MANI[2] the learned Judge of the Madras High Court at para 21 observed as hereunder:- “Now taking up the case of the complainant as against the other accused viz., the accused 3 to 8, P.W.1 Manjula in her chief examination did not say that they abetted the commission of the offence of bigamy by rendering any assistance or help to the accused 1 and 2 in their marriage. Nothing is whispered in the testimony of P.W.1 Manjula about the part played by the accused 3 to 8 in the performance of the marriage between the accused 1 and 2 except stating that they blessed the couple viz., the accused 1 and 2. Likewise, P.W.2 Rajagopal has also stated in his chief examination that the accused 3 to 8 blessed the accused 1 no doubt 2 at the time of their marriage. Their blessings will not tantamount to the abetment of the commission of the offence of bigamy under Section 494 read with sn109 of I.P.C. Therefore the order of acquittal passed by the lower Court as against the accused 3 to 8 cannot be disturbed or interfered with and the order of acquittal passed by the lower Court as against the accused 3 to 8 is maintained” 11. In MUTHAMMAL v. MARUTHATHAL[3] the learned Judge of the Madras High Court observed where the charge under Sections 109 and 494 was leveled against the petitioners who were alleged to have abetted the accused to marry during subsistence of the first marriage, the charge could not be maintainable against them in view of the evidence adduced the prosecution witnesses which did not show that the petitioners presence at the time of marriage amounted to commissioning of the offence and if the petitioners had not remained present at the time of the marriage the offence under Section 494 would not have taken place. Further just because the mother was present at the time of marriage along with petitioners it could not be said that she was there only to commit abetment of the offence to be committed or committed by the accused. The definition of abetment in Section 107 includes not merely instigation, which is the normal form of abetment but also conspiracy and aiding and those three forms of abetment are dealt with in proviso to Section 111. Instigation must have reference to the thing that was done. By mere association of the accused persons who are charged for an offence of abetment and the principal offender. In the absence of any material to show that there was an instigation or that there was any intention either in aiding or in commissioning the offence it cannot be said that offence of abetment is committed. The accused persons can be charged and convicted for the offence of abetment where there is evidence to show that such persons have instigated or otherwise abetted in the acts of the person who has actually committed the offence or crime. 12. Reliance also was placed on KARUPPIAH SERVAI v. NAGAVALLI AMMAL[4] wherein the learned Judge of Madras High Court observed the mother and the brother of the first accused in a case under Section 495 Penal Code for the offence of bigamy who were merely passive witnesses of the second marriage could not be held guilty of abetment of the offence. The first accused and his father the second accused who had secured a false certificate from the Village Munsif to the effect that the first accused was not married previously and produced such certificate to the authority of the temple where the second marriage was performed were guilty of the offence respectively under Section 495 and Section 495 read with Section 109 Penal Code. Further, there was clear admission by the first accused about his first marriage. His plea that the wife by the first marriage was divorced was disbelieved. 13. Further strong reliance also was placed on MALAN v. STATE OF BOMBAY[5] wherein the learned Judge of the Bombay High Court observed at paras 7, 8, 9 and 13 as hereunder:- “Section 107 defines abetment. It is well known that an act of abetment may take place in one of three ways: (1) Instigation, (2) Conspiracy, or (3) Intentional aid. Having regard to the charge in the present case, there is no doubt whatsoever that the prosecution did not allege that any of the aforesaid accused had instigated the commission of the offence of bigamy. The was conceded by the learned Government Pleader. The learned Government Pleader, however, urged that, on the facts aforesaid the prosecution had established that there was a conspiracy by all the aforesaid accused persons to commit the offence of bigamy. I do not think I can agree with this submission. In the first instance no conspiracy was alleged in the charge. The charge was that the aforesaid accused had abetted the void marriage, knowing it to be void, by celebrating the same. Therefore, the charge which the aforesaid accused person were called upon to meet was that they ahd taken part in the celebration of the marriage. There was no allegation whatsoever that, prior to the celebration of the marriage, these accused had entered into a conspiracy for the purpose of celebrating the marriage in question. From the judgments delivered by the learned trial magistrate and the learned appellate Judge also, there is no doubt whatsoever that the charge which was pressed against the aforesaid accused was that they had participated in a void marriage. Moreover, the aforesaid facts, which I have mentioned and which have been found against the accused, do not leave any doubt that there was no conspiracy prior to the celebration of the marriage between the accused. Therefore, in my opinion, the charge which was levelled against the accused was not one that they had entered into a conspiracy for celebrating a void marriage. Under the circumstances, the principal question which required to be decided in the present case in whether the facts brought home against the accused as aforesaid constitute an intentional aid within the meaning of Section 107 I. P. C. For the purpose of determining this question, in my opinion, it is better, first of al, to concentrate on the first three general facts found against all the accused persons. those general facts are that they knew that the accused No. 1 was celebrating a void marriage and was committing the offence of bigamy; that they remained present at the time of the celebration of that void marriage and, during the performance thereof, they threw holy rice on the couple. There is very good authority for the proposition that mere presence at the commission of a crime even with the awarness that a crime was being committed is not in itself an intentional aid. This proposition is not being disputed by the learned Government Pleader. In fact, this proposition was laid down by this Court as early as in Empress v. Umi, ILR 6 Bom 126. The learned government Pleader, however contended that though this is so, there may be some cases in which persons may occupy a position of influence and rank so that their presence may mean encouragement to commit the crime and he contended that, when such is the case, persons holding the position of rank and influence should be regarded as abettors. For this purpose, the learned Government Pleader relied upon a passge from Messrs. Ratanlal and Dhirajlal's Law of crimes 19th Edition, at page 230. The passage is as follows: "Mere presence at the commission of a crime cannot amount to intentional aid, unless it was intended to have that effect. To be present and to be aware that an offence is about to be committed does not constitute abetment unless the person thus present holds some position of rank or influence such that his contenancing what takes place may, under the cirumstances. be held a direct encouragement. . . . . . . . . . " This passage is based upon the case in Queen-Empress v. Lakshmi. Crim Rev. Appln. No. 51 of 1868: Rat Un Cri Cas 303. So far as this ruling is concerned, the aforesaid remarks are obiter. In this case, the learned Judges actually came to the conclusion that the woman who had been convicted of the offence of abetment did not hold a special position and her mere knowledge of what was done or was about to be done could not be held to be an abetment. Therefore, the observations which were made in this case do not give any help in deciding the present case. In my opinion even if one agrees with the submission of the learned Government Pleader that, under certain circumstance, where persons present hold position of influence or rank their presence should be construed an an encouragement of the criminal act, in the present case, it is impossible to hold that the aforesaid accused persons held such a position vis a vis accused No. 1 that their presence should be taken as having encouraged the accused No. 1 in committing the offence of bigamy. so far as some of the accused persons are concerned. the Learned government Pleader had to concede that their acts do not come within the principle which is enunciated above. Accused No. is the brothr of the bride. It is conceded by the Learned government Pleader that so far as these accused persons are concverned, they cannot be said to be occupying a position of rank or influence. and their presence cannot be said to have encouraged accused No. 1 in the performance of the void marriage. athe learned Government pleader, however, contended that the acts of accused Nos. 1 to 4, 9, 11 and 12 stood on a differen footing. the accused Nos. 2 and 3 are the parents of the bridegroom. and the accused No. 4 is his uncle. Accused No. 9 is the police patil of the village at which the marriage was celebrated and accused Nos. 11 an 12 are the parents of the bride. It was contended that these persons occupied a position of ranks and influence and, therefore, their presence must be taken to have encouraged accused No. 1 in the performance of the void marriage. This aspect of the case does not appear to have been discussed before any of the lower Courts, and none the lower Courts has applied its mind on this subject. The matter is one of presumption arising from certain relationship existing between the parties. In my opinion the matter is one which is dependent upon the evidence in each case. The admitted fact is that these persons are related as aforesaid and that they remained present at the aforesaid void marriage. There is nothing else on the record of the case which would show that their presence amounted to encouragement and that if these persons had not remained present at the time of the marriage, theoffence of bigamy probably would not have taken place and the accused No. 1 would have acted in a manner different from what he did at the time of the performance of the aforesaid marriage. Sometimes elders do remain present even at marriages which they disapprove. they may do so out of sentiments or social considerations. Under the aforesaid circumstances, have regard to the fact that I am dealing with this matter in a revision application, and the fact that this aspect of the case has not been considered by the lower courts. I am not prepared to hold that the aforesaid accused should be held to have encouraged the performance of the void marriage simply from the fact that they remained present at the marriage. The next point is whether the fact that the aforesaid accused person threw holy rice on the couple should be regarded as an act of abetment. The evidenc discloses that this act of throwing rice was done by the aforesaid persons during the time when the 'antarpat' was held and the 'managalastakes' were being recited. The question as to whether this act amounts to an abetment or not depends upon a consideration of explanation 2 to Section 107 I. P. C. That Explanation sys that whoever, either prior to or at the time of the commission of an act, does aything in order to faciliate the commission of that act, and, thereby facilities the commission thereof, is said to aid the doing