M.K. Chawla, J.@mdashOn 14-5-85, one Neeta Kamra claiming herself to be the wife of Shri Suhird Kamra filed the complaint u/s 494/495 read with Section 109 I.P.C. in the court of the Additional Chief Judicial Magistrate, West district, Delhi. In the complaint, she alleged that her marriage with respondent No. 1 was performed at Arya Samaj Mandir, Pankha Road "C" Block, Janakpuri, New Delhi, in the presence of her family members. After the marriage, both of them have been living as husband and wife at various places including at the house of her parents at Janakpuri, New Delhi. Out of the said wedlock, a girl was born to the petitioner on 21-1-85 at Janakpuri. However, on 4-1-85, her husband left the house with his bag and baggage for good and thereafter never returned. The petitioner has now come to know that respondent No. 1 Suhird Kamra has contacted a second marriage with one Neena Kamra at Putta Parthy, Hyderabad which was attended by his father, mother, sister Miss Monika Kamra and his aunt Mrs. Nivedita Chauhan, the respondents in that case. All the respondents were fully aware of the earlier marriage of respondent No. 1 with the applicant and they were thus guilty of abetting him to enter into a second illegal marriage.
2. In support of her complaint, the petitioner examined herself and produced three other witnesses, including her father and Shri Goverdhan Lal, the father of Smt. Neeta Kamra. After going through the complaint and the evidence recorded in support of the averments made therein, the learned Metropolitan Magistrate vide order dated 1-10-85, found that a prima facie case u/s 494 I.P.C. against Suhird Kamra, and u/s 494/109 IPC against the remaining respondents has been made out, and accordingly summoned them. It is against this order Mrs. Nivedita Dina Nath has filed the present petition u/s 482 Cr.P.C. for quashing the impugned order of the learned Magistrate issuing process and calling upon the petitioner to face charge u/s 494/109 I.P.C.
. 3. The contention of the learned counsel for the petitioner is that the complainant Neeta Kamra while appearing as her own witness in the preliminary enquiries, .has not at all named the petitioner as one of the persons Along with others abetting in the commission of the offence u/s 494 I.P.C. Shri Goverdhan Lal who is alleged to be the father of the complainant even though stated that the present petitioner participated in the second marriage but he was not present at the time and place of the alleged second marriage and as such his statement cannot be relied upon. The further contention of the learned counsel for the petitioner is that even though PW-2 Brig. Bardoloi, the father of Neena deposed that at the time of the second marriage, the present petitioner was also present, but that oral testimony has not been supported from any documentary evidence. There being no worthwhile evidence against the petitioner, the order of summoning thus is bad in law and deserves to be quashed.
4. The contention of the learned counsel for Neeta Kamra is that the provisions of Section 109 of the Indian Penal Code will be fully attracted if the complainant is able to prove the active participation of the present petitioner at the time of the second marriage. According to the learned counsel, an act or the offence must be held to have been committed in consequence of the abetment when it is so done at the instigation or in pursuance of the conspiracy which act has been duly proved from the preliminary evidence recorded in support of the complaint of Neeta Kamra.
. 5. After giving my careful thought to the arguments advanced at the Bar, I am of the opinion that the name of the present petitioner Mrs. Nivedita Dina Nath, has wrongly been mentioned as one of the persons responsible for committing the act of abetment or instigating Suhird Kamra to enter into the so-called second marriage with Neena Kamra. In fact, there is no allegation of any conspiracy between the respondent to abet Suhird Kamra to commit the offence u/s 494 IPC. Neither in the complaint nor in the evidence so far recorded, it has come on record as to when, where and who performed the so-called second marriage. Was it performed in the Arya Samaj Mandir as per the Hindu- rites or otherwise. It is also not made clear as to how many persons from the side of the girl were present and who among them performed the kanyadaan. The mere averment that the second marriage was performed is neither here nor there.
6. Furthermore, in the absence of proof of guilty intention on the part of the present petitioner there cannot be any abetment of an offence u/s 109 IPC. The conspiracy necessarily involves a guilty intention which in this case is missing. The mere presence without more, during the commission of the alleged offence is not sufficient for conviction. In fact, the complainant has not made any specific allegations against the petitioner which may be interpreted as an act of abetment. Her presence, if at all, in the absence of any instigation, conspiracy and intentional aid do not, in my opinion, constitute abetment of an offence.
7. In this view of the matter, the order of the Metropolitan Magistrate dated 1-10-85 summoning the petitioner is bad in law and is not based on evidence, and cannot be sustained.
8. In the result, I accept the petition and the order of the learned Metropolitan Magistrate dated 1-10-85 summoning the present petitioner is quashed.
