S. Nitheen vs The State Of Kerala

2024 INSC 420 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP (Criminal) No(s). 8529 of 2019)

S. NITHEEN & ORS. .…APPELLANT(S)

VERSUS

STATE OF KERALA & ANR. ….RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP (Criminal) No(s). 11679 of 2019)

CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP (Criminal) No(s). 11681 of 2019)

JUDGMENT

Mehta, J.

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 Signature Not Verified Digitally signed by Narendra Prasad Date: 2024.05.15

by this judgment.

17:45:28 IST Reason:

1

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 ‘CrPC’), 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. MC. No. 8108 of 2018

2 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 Accused No.6- P.R. Sreejith(A-6) witnesses to the second marriage Accused No.7- H. Gireesh (A-7) [Appellant in SLP (Crl.) No.8529 of 2019]

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

3 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,

4 they are the friends of Saneesh(A-2) and Ms. Lumina(A-2) and are

simply stated to be the witnesses to the marriage solemnized

between them at the church. There is no material on record to

show that any of these three accused knew about the previous

marriage of Ms. Lumina(A-1) with the complainant.

10. Learned counsel contended that in absence of any evidence

except for the bald allegation to the effect that A-5, A-6 and A-7

were having knowledge regarding the previous marriage of

Ms.Lumina(A-1) with the complainant, they cannot be charged for

the offences punishable under Section 494 read with Section 34

IPC.

He thus implored the Court to accept the appeals and quash

the impugned orders as well as all the proceedings sought to be

undertaken against the appellants in the above mentioned

criminal case.

Submission on behalf of the respondent/complainant: -

11. Per contra, Mr. Alim Anvar learned counsel representing the

complainant vehemently and fervently opposed the submissions

advanced by learned counsel for the appellants. He urged that the

appellants namely, S. Nitheen(A-5), P.R. Sreejith(A-6) and H.

5 Gireesh(A-7) being the friends of Ms. Lumina(A-1) and Saneesh(A-

2) participated in their bigamous marriage and stood as witnesses

to the ceremony and thus, they are liable to be prosecuted for the

offence of bigamy.

12. It was further submitted that the appellants Flory Lopez(A-3)

and Vimal Jacob(A-4) being blood relatives of Ms. Lumina(A-1)

were aware of her subsisting marriage with the complainant, but

they took no steps whatsoever to prevent Ms. Lumina(A-1) from

contracting bigamous marriage with Saneesh(A-2) and thus, they

too are liable to be prosecuted for the offences punishable under

Section 494 read with Section 34 IPC. He thus, implored the Court

to dismiss the appeals.

13. We have given our thoughtful consideration to the

submissions advanced by learned counsel for the parties and have

gone through the impugned orders, the complaint as well as the

statements recorded in support thereof at the stage of pre-charge

evidence.

Discussion and Conclusion: -

14. At the outset, we may note that the complaint was filed

alleging commission of the offence punishable under Section 494

6 read with Section 34 IPC. However, post recording pre-charge

evidence, the learned JMFC passed an order dated 28th May, 2018

directing framing of charge against all the accused persons for the

offence punishable under Section 494 IPC.

15. The essential ingredients of offence under Section 494 IPC,

as explained by this Court in the case of Gopal Lal v. State of

Rajasthan1, are as follows:

“3. The essential ingredients of this offence are:

(1) that the accused spouse must have contracted the first marriage (2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and (3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.”

16. A bare perusal of the penal provision would indicate that the

order framing charge is erroneous on the face of the record because

no person other than the spouse to the second marriage could have

been charged for the offence punishable under Section 494 IPC

simplicitor. However, this is a curable defect, and the charge can

be altered at any stage as per the provisions of Section 216 CrPC.

17. It is a peculiar case wherein, the complainant has not sought

prosecution of the appellants for the charge of abetting the second

1 (1979) 2 SCC 170

7 marriage by Ms. Lumina(A-1) under Section 109 IPC. The

appellants herein are being roped in by virtue of Section 34 IPC

with the allegation that they had the common intention to commit

the offence under Section 494 IPC. In order to bring home the said

charge, the complainant would be required to prima facie prove not

only the presence of the accused persons, but the overt act or

omission of the accused persons in the second marriage ceremony

and also establish that such accused were aware about the

subsisting marriage of Ms. Lumina(A-1) with the complainant.

18. A perusal of the pre-charge evidence led in support of the

complaint would reveal that Flory Lopez(A-3) and Vimal Jacob(A-

4) were not even alleged to be present at the time of such marriage.

Hence, the involvement of these accused for the charge of having

a common intention to commit the offence under Section 494 IPC

is not established by an iota of evidence.

19. So far as S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A-

7) are concerned, they are alleged to be the friends of Ms.

Lumina(A-1) and Saneesh(A-2) and that they witnessed the alleged

bigamous marriage. On perusal of the evidence of the complainant

who testified as CW-1, it becomes clear that all he has alleged in

his deposition is that accused S. Nitheen(A-5), P.R. Sreejith(A-6)

8 and H. Gireesh(A-7) were the witnesses to the second marriage.

However, there is not even a shred of allegation by the complainant

that these accused, acted as witnesses to the second marriage

having knowledge that Ms. Lumina(A-1) was already married to the

complainant. In absence of such allegation, the prosecution of the

S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A-7), for the

charge of having a common intention to commit the offence under

Section 494 IPC is totally unwarranted in the eyes of law.

20. This Court in the case of Chand Dhawan(Smt) v. Jawahar

Lal and Others2 while upholding the order passed by the High

Court quashing the criminal proceedings under Section 494 IPC

against the accused therein, observed as follows: -

9. “………………So far as other respondents are concerned, it may be said that they had been unnecessarily and vexatiously roped in. The allegations in the complaint so far as these respondents are concerned are vague. It cannot be assumed that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting. The explanation of the first respondent that the second respondent has been functioning as a governess to look after his children in the absence of the mother who had left them implies that respondents 1 and 2 are living together. In this background, the allegations made against respondents 3 to 7 imputing them with guilty knowledge unsupported by other material would not justify the continuance of the proceedings against those respondents.” (emphasis supplied)

2 (1992) 3 SCC 317

9

21. As a consequence of the above discussion, we are of the view

that allowing the proceedings of the criminal case to be continued

against the appellants would tantamount to gross illegality and

abuse of the process of Court. The order framing charge as well as

the order rejecting the revision petition and criminal miscellaneous

petition preferred by the accused appellants do not stand to

scrutiny.

22. Resultantly, the 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.

23. The appeals are allowed in these terms.

24. No order as to costs.

25. Pending application(s), if any, shall stand disposed of.

………………….……….J. (B.R. GAVAI)

………………………….J. (SANDEEP MEHTA) New Delhi;

May 15, 2024

10