9911796707
TMI Blog2012 (2) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial Magistrate, Bhavani under Section 200 Cr.P.C. The learned Judicial Magistrate took cognizance of the complaint, examined the complainant and two more witnesses produced by the complainant on oath and after considering the contents of the complaint, the statements of the complainant and the witnesses recorded on oath, the learned Judicial Magistrate formed an opinion that the said case was not a case in which it could be said that there was no sufficient ground for proceeding further. Accordingly the learned Judicial Magistrate proceeded with the issuance of process under Section 203 r/w. 204 Cr.P.C. After being served with process, the petitioners in both the petitions, have come forward with the present petitions invoking the inherent powers of this Court under Section 482 Cr.P.C praying that the complaint should be quashed on various grounds set out in the grounds incorporated in the petition. 3. The submissions made by Mr.Rubert J.Barnabas, learned counsel for the petitioners in Crl.O.P.No.777 of 2008 and by Mr.A.S.Vijayaraghavan, learned counsel for the petitioners in Crl.O.P.No.36039 of 2007 and also the arguments advanced by Mr.I.C.Vasudevan, learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry filing of the complaint itself is an abuse of process of Court and on that ground also, the complaint should be quashed. 6. Per contra, Mr.I.C.Vasudevan, learned counsel for the respondent in both the petitions, would submit that the active participation of the petitioners (A7 and A8) in Crl.O.P.No.36039 of 2007 in the alleged marriage between the first accused and the second accused has been clearly averred in the complaint and that the same has been spoken to by the complainant and one of the witnesses examined, who has been cited as a witness, who saw the marriage of first accused with the second accused, in their sworn statements recorded by the Judicial Magistrate. Learned counsel for the respondent has also drawn the attention of the Court to the fact that the second witness produced has spoken to the effect that after the marriage, he saw the accused persons and learnt from them that the first accused had married the second accused with the intention of having a male issue. The learned counsel also has pointed out the fact that the said witness, namely Nataraj was cited as a witness only to speak about his seeing the accused 1 and 2 with garlands accompanied by the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first accused nor the place of residence of the complainant, as the place wherein the second marriage took place and preferring the complaint on the file of the learned Judicial Magistrate, Bhavani would show the abuse of process on the part of the respondent/complainant to drag the petitioners to a Court, which shall be more inconvenient to them. According to the contention raised by the learned counsel, the intention of the complainant/respondent was to coerce the first accused to withdraw the divorce petition. 9. The answer to the contention of the learned counsel for the petitioners is that simply because a divorce petition preceded the lodging of the complaint, we cannot come to the conclusion at the threshold itself that the averments made in the complaint are false and the complaint itself has been preferred with an intention of coercing the first accused to withdraw H.M.O.P. The other contention raised on behalf of the petitioners is that the respondent/complainant could have either chosen Coimbatore being the place wherein they last resided together or Tiruchengode, wherein the respondent resides as the place for prosecuting the accused and the very fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. 11. The next contention is that the alleged second marriage has not been stated to have been performed in accordance with the customary rites or ceremonies of either of the parties to the marriage and as per Section 7 of the Hindu Marriage Act and hence it should be infrerred that the Magistrate who took cognizance, has failed properly to appply his mind to the contents of the complaint and the documents including statements recorded on Oath under Section 202 Cr.P.C. As rightly pointed out by the learned counsel for the respondent, the answer to the above said contention lies in the Tamil Nadu Amendment by which Section 7-A has been introduced to Hindu Marriage Act. As per the special provision applicable in Tamil Nadu, all hindu marriages whether it is called Suyamariythai or Seerthiruththa marraige or any other name, shall not be valid if each party to the marriage declare in the language understood by the parties that each takes the other to be his wife or husband as the case may be in the presence of relatives, friends or other persons or by each party to the marriage garlanding the other or by putting a ring upon any finger of the other or by tying a thali. For b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her party thereto; Provided that nothing obtained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement. (4) Any child of the parties to a marriage referred to in clause (b) of Subsection (2) born of such marriage shall be deemed to be their legitimate child: Provided that in case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii) Pondicherry Act 14 of 1971, S.2 (w.e.f 9-7-1971). 12. If the contention of the learned counsel for the petitioners is considered in the light of Section 7-A, we have to arrive at a necessary conclusion that the said ground is not available to the petitioners at this point of time. Prime facie averments have been made in the complaint and the complainant and one of the witnesses, have also spoken to the facts attracting Section 7-A of the Hindu Marriage Act. The same shall be enough to hold that there are sufficient grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioners that the complaint has been preferred with a malafide intention and that sufficient grounds have not been made for proceeding against the petitioners, are bound to be rejected as untenable. 14. Yet another contention was also raised on behalf of the petitioners in Crl.O.P.No.777 of 2008 that there is a delay of nearly one month after the date of alleged occurrence and on that ground the complaint should be dismissed. This is not a cognizable case wherein we can find fault with the defacto complainant for not approaching the police immediately. Delicate relationships are involved. When the offence was committed within the knowledge of the complainant and the complaint was given at a later point of time, we may find fault with the complainant for approaching the Court with such a delay. Here again we should not forget that a complaint otherwise maintainable, cannot be thrown out merely on the ground of delay, unless it is barred by limitation. Therefore, the said contention also deserves to be rejected. 15. The other contention raised on behalf of the petitioners 3 to 11 in Crl.O.P.No.777 of 2008 and the petitioners 1 and 2 in Crl.O.P.No.36039 of 2007 is that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
