Accused 3 to 6 in C.C. 376 of 1983 on the file of the Judicial First Class Magistrate No. 1, Madurai, have preferred this petition to quash the said proceeding against them under S. 482, Cr.P.C. The respondent herein filed a complaint against these petitioners and four other accused on the following allegations. The first accused is the husband of the complainant. Accused 3 and 4 are the parents of the first accused. The sixth accused is the sister of the complainant's mother. The fifth accused is the husband of the sixth accused. Accused 7 and 8 are the parents of the second accused. The complainant married the first accused on 22-8-1975 according to the caste custom and the said marriage is subsisting. There were misunderstandings between them and at the instigation of accused 3 to 6, the first accused was compelling her to give consent for his second marriage. On 25-5-1983 the first accused left the house without informing the complainant and when she questioned accused 3 and 4, they refused to divulge any information about his address. The complainant's father came to know that the first accused married the second accused at the instigation of accused 3 to 8 and in their presence on 26-5-1983, at about 11 a.m. in the house of the second accused, the first accused tied thali around the neck of the second accused and they exchanged garlands. Witnesses 1 and 2 cited in the complaint at the invitation of the first accused attended the marriage and they were informed that the relationship between the complainant and the first accused was severed. Accused 3 to 8, after the thali was tied, threw Akshathai (holy rice) and blessed the couple and gave presents. Hence, she has preferred the complaint. Her sworn statement was recorded. The complaint was taken on file against the first accused under Section 494, IPC and against the other accused under S. 494 read with S. 114, IPC. Aggrieved by the same, accused 3 to 6 have filed this petition to quash the proceeding on the following grounds : According to the petitioners even if the entire allegations in the complaint as well as the sworn statement are true, they would not constitute an offence of abetment of bigamy against these petitioners. It is further submitted that under S. 114, I.P.C. abetment of the offence is not prior to the time the offence takes place but the abettor also helps in the commission of the offence. It is further submitted that the complainant has no personal knowledge of the bigamy marriage and the role played by any of the accused and that none of the witnesses cited in the complaint has been examined under S. 200, Cr.P.C. before even the complaint was taken on file. Since there is no legal (sic) on record for application of judicial mind at the time of taking the complaint, the order passed by the Magistrate is without jurisdiction and is liable to be quashed. It is further submitted that the said complaint has been filed against those accused due to enmity and with ulterior motive to harass them by abuse of the process of court.


2. At the outset, it is to be found out whether the allegations levelled in the complaint and the sworn statement do constitute and offence of abetment under S. 114, I.P.C. and whether there is any legal evidence to support the same. In the complaint it is alleged that due to enmity between the complainant and accused 3 to 6, the first accused, at their instigation, was compelling the complainant to give her consent, for some time prior to the occurrence, for remarriage. Another allegation made in the complaint is that the complainant came to know that the father of the complainant was informed by the first witness cited in the complaint that accused 1 and 2 celebrated the second marriage at the instigation of accused 3 to 8, and in their presence the marriage was celebrated in the house of the second accused by tying thali and exchanging garlands and that accused 3 to 8 after marriage threw holy rice and blessed the couple and also gave presents.


3. Learned counsel for the petitioners, Mr. T. S. Arunachalam submitted the even accepting the allegation that the first accused was compelling the complainant to give her consent to marry a second wife sometime prior to the occurrence, it would not mean that the petitioners abetted the commission of the offence of bigamy of the first accused marrying the second accused on the date of the alleged marriage. At best, it would be referable to a stage of preparation and at no stretch of imagination any offence is said to have been perpetrated and in any event it is not referable to any marriage between accused 1 and 2. Next it was submitted that the first accused is alleged to have left the house on 25-5-1983, and when the complainant enquired the parents of the first accused about the first accused, they refused to give details of his whereabouts. It is submitted by the learned counsel for the petitioners that the mere fact that they refused to answer the enquiries made by the complainant about the whereabouts of the first accused after he left the house would not mean that they committed the offence of bigamy, namely, the second marriage with the second accused. Next it was submitted by the learned counsel for the petitioners that the only two rituals alleged to have been performed at the marriage are tying of thali and exchanging garlands and no other rituals. As such, the question of the other accused assisting them in the rituals does not arise. It is also submitted by the learned counsel that the mere fact that the accused were present at the marriage, blessed the couple and gave them presents would not mean that they abetted the offence. Even in the sworn statement, the only overt act attributed to them is that they blessed the couple and gave presents at the time of the marriage. According to the learned counsel, even these allegations are only hearsay, since the witness who is said to have given the information was not examined. Though her father was present at the time of giving the complaint, he was also not examined. According to the learned counsel, the materials now placed before court are only hearsay evidence and even accepting them, they do not constitute the offence of abetment.


4. In support of his contentions, the learned counsel for the petitioners relied on the decision reported in Shriram v. U.P. State 1974 CAR 342, 1974 CrLR(SC) 715, 1975 (3) SCC 495, 1975 SCC(Cr) 87, 1975 (2) SCR 622, 1975 (81) CRLJ 240, 1976 MLJ 78, 1975 SCC(Cri) 87, 1976 MLJ(Cri) 78, 1975 AIR(SC) 175 : 1974 CAR 342, 1974 CrLR(SC) 715, 1975 (3) SCC 495, 1975 SCC(Cr) 87, 1975 (2) SCR 622, 1975 (81) CRLJ 240, 1976 MLJ 78, 1975 SCC(Cri) 87, 1976 MLJ(Cri) 78, 1975 AIR(SC) 175 : 1974 CAR 342, 1974 CrLR(SC) 715, 1975 (3) SCC 495, 1975 SCC(Cr) 87, 1975 (2) SCR 622, 1975 (81) CRLJ 240, 1976 MLJ 78, 1975 SCC(Cri) 87, 1976 MLJ(Cri) 78, 1975 AIR(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 in re, 1928 (51) ILR(Mad) 263 : (1928- 29 CrLJ 72) 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 (42) ILR(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 : 1960 CrLJ 1189), 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 the holy rice over the couple did not amount to abetment of bigamy notwithstanding that the accused No. 3 had distributed pan after the ceremony." *


On the 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 : 1981 CrLJ 833) 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 : 1982 CrLJ 1362) 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 matter to show that there was an instigation by 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 principal 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 than 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 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.


5. On the other hand, the learned counsel for the respondent, Mr. B. Sriramulu, submits that under S. 2(d) of the Cr.P.C. 'complaint' means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, than some person, whether known or unknown, has committed an offence, but does not include a police report. He also submitted that under S. 168, Cr.P.C. the 'wife' alone is empowered to file a complaint against her husband for the offence under S. 494 I.P.C. and under these circumstances, the wife, who received information, can institute the complaint. The learned counsel also pointed out that the explanation to S. 2(d), Cr.P.C. reads as follows :-


"A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognisable offence shad be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant." *


It clearly says that a complaint can be made on the basis of the evidence of witnesses examined during the investigation. That complaint since the police officer is empowered to investigate the case and file charge-sheet against the accused. The learned counsel for the petitioners, on the other hand, drew my attention to the decision reported in Nagawwa v. V. Shivalingappa, 1976 AIR(SC) 1947, 1976 CrLR(SC) 246, 1976 (3) SCC 736, 1976 SCC(Cr) 507, 1976 (S) SCR 123, 1976 SCC(Cri) 507, 3 SCC(p) 736, 1976 CrLJ 1533 : 1976 2 SC WR 1 : 1976 AIR(SC) 1947, 1976 CrLR(SC) 246, 1976 (3) SCC 736, 1976 SCC(Cr) 507, 1976 (S) SCR 123, 1976 SCC(Cri) 507, 3 SCC(p) 736, 1976 CrLJ 1533 ), where it was held :-


"Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside - (1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."


The learned counsel submitted that the allegations which do not constitute the offence and the materials which are inadmissible cannot be the basis for taking cognizance of an offence and issuing process. In the instant case, except the hearsay evidence, there is no other evidence on the side of the complainant so far as these accused are concerned. The learned counsel for the petitioner drew my attention to the decision reported in Gopinath and Sons v. State of H.P. 1981 CrLJ 175 at 180 (Him Pra) where it was held -


"It would thus necessarily follow that before directing issue of process against an accused person, the Magistrate must apply his judicial mind to the material before him and ascertain not only that there is sufficient ground for proceeding further in the complaint but also the nature of the offence for which the accused need be summoned. It necessarily follows that under this provision the Magistrate does not enjoy an unrestricted power to summon a person at his whim, fancy or caprice simply because a complaint has been filed against him. Although strictly speaking it is no requirement of S. 204 that an order directing issue of process against the accused be supported by detailed reasons, nonetheless this order has to be made by the Magistrate after applying his judicial mind to the material on record and this application of mind must be exhibited in the order itself in one way or the other. An order passed by the Magistrate without application of such mind would be without jurisdiction and liable to be quashed." *


In Macculoch v. State, 1974 CrLJ 182 (Cal) it was held -


"The provisions of S. 200 are not a mere formality, but have been intended by the Legislature to be given effect to for the protection of the accused persons against, unwarranted complaints." *


In the said case, the decision reported in Nirmaljit Singh Hoon v. State of West Bengal, 1973 CrLR(SC) 237, 1973 (3) SCC 753, 1973 (2) SCR 66, 1973 CRLR 237, 1973 SCC(Cri) 521, 1973 CrLJ 237, 1973 SCC(Cr) 521, 1972 AIR(SC) 2639 was relied on. In Rajendranath v. Dy Supdt. of Police, Purulia, 1972 CAR 84, 1972 (78) CrLJ 268, 1972 (1) SCC 450, 1972 SCC(Cr) 206, 1972 (2) SCR 671, 1972 UJ 318, 1972 SCC(Cri) 206, 1972 AIR(SC) 470 : 1972 CAR 84, 1972 (78) CrLJ 268, 1972 (1) SCC 450, 1972 SCC(Cr) 206, 1972 (2) SCR 671, 1972 UJ 318, 1972 SCC(Cri) 206, 1972 AIR(SC) 470 it was held -


"The High Court under S. 561-A, Cr.P.C. (old Code>can go into the question as to whether there is any legal evidence." *


In that case, also, the power of a Magistrate to issue process under S. 202 and taking cognizance to issue process under S. 204 was the matter in issue.


6. On the other hand, the learned counsel for the respondent, Mr. Sriramulu, relied on the decision reported in J. P. Sharma v. Vinod Kumar Jain, 1986 (92) CRLJ 917, 1986 AIR(SC) 833, 1986 (2) CompLJ 1, 1986 (2) Crimes 1, 1986 CAR 98, 1986 CrLR(SC) 244, 1986 (1) Scale 859, 1986 (3) SCC 67, 1986 SCC(Cr) 216, 1986 (2) SCR 388, 1987 (1) CLR 1 : 1986 (92) CRLJ 917, 1986 AIR(SC) 833, 1986 (2) CompLJ 1, 1986 (2) Crimes 1, 1986 CAR 98, 1986 CrLR(SC) 244, 1986 (1) Scale 859, 1986 (3) SCC 67, 1986 SCC(Cr) 216, 1986 (2) SCR 388, 1987 (1) CLR 1where it was held -


"The question at this stage is not whether there was any truth in the allegations, made but the question is whether on the basis of the allegations, a cognizable offence or offences had been alleged to ha

ve been committed. The facts subsequently found out to prove the truth or otherwise on the allegations is not a ground on the basis of which the complaint can be quashed." 7. 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 Lordship 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. 8. In the result, the petition is allowed. The proceeding against the petitioners, who are accused 3 to 6, is hereby quashed.