Bigamy | Only Court Within Whose Jurisdiction Second Marriage Is Performed Has Power To Try Offence U/S 494 IPC: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that in an offence falling under Section 494 IPC of performing/ contracting second marriage during the subsistence of first valid marriage, it is only the Court within whose jurisdiction the second marriage is performed which has the jurisdiction to try the case in terms of Section 177 of Criminal Procedure Code.

The bench of Justice Vinod Chatterji Koul was hearing a plea in terms of which the petitioners prayed for quashing of complaint pending before Chief Judicial Magistrate Reasi and also the order by virtue of which Trial Court had taken cognizance and has issued process to the petitioners.

The primary ground on which the petitioners challenged the complaint and the issuance of process was that the trial Court lacked the jurisdiction for entertaining the same as Section 177 CrPC clearly lays down the jurisdiction of the Court to try an offence in the terms that every offence shall ordinarily be enquired into and tried by the Court within locals limits of whose jurisdiction the same was committed.

Taking recourse to the available record the bench noted that the complainant/respondent No. 1 claimed herself to be the legally wedded wife of respondent No. 2 filed a complaint under Sections 494, 109, 114, 120-8 IPC before the Trial Court against the petitioners. Record also revealed that the complaint in her complainant before the trial court had also alleged that right from the beginning of marriage the proforma respondent No. 2 herein and his family members started harassing her for bringing dowry. The bench also took note of the fact that in the complaint it was alleged that proforma respondent No. 2 -Nikhil Mahajan with the connivance of petitioners has contracted second marriage with proforma respondent No. 3- Ananya Wadhera somewhere in the month of May 2018, during the subsistence of the first marriage and from the second marriage a male child has born on 04.02.2019 to the proforma respondent Nos. 2 and 3.

Adjudicating upon the matter in controversy the bench observed that any Magistrate can take cognizance whether it has the jurisdiction or not but enquiry of trial is to be conducted by the Magistrate having jurisdiction.

While stating the law on the subject the bench also placed on record the observations of supreme court in Trisuns Chemical Industry v. Rajesh Agarwal , reported in 1999(4) wherein SC while deliberating on this aspect recorded,

"The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to which Court has jurisdiction to enquiry into or try the offence and that situation would reach only during the post cognizance stage and not earlier".

Expounding further upon the matter Justice Koul placed strong reliance on another Judgement of J&K&L High Court in S. Karan Singh Sodhi and others vs. Jatender Jeet Kour, reported in 2007 wherein the High Court while dealing with a similar situation observed,

"The question is which marriage constitute the offence punishable under Section 494, R.P.C. In terms of Section 494, R.P.C. performing/contracting the second marriage during the subsistence of first valid marriage is the offence. The Court within whose jurisdiction, the second marriage is performed is having the jurisdiction to try the case in terms of Section 177 of Criminal Procedure Code (in short "the Code"). This provision of law lays down the general principles as regards the jurisdiction of the Court. Every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Admittedly offence under Section 494, R.P.C. is the second marriage. As discussed herein above the second marriage has been contracted at Baramulla, as alleged. Thus, Baramulla Court is having the jurisdiction to try the complaint".

The Court held that the CJM lacked jurisdiction to try the case and as such granted liberty to the Complainant-respondent No. 2 to approach appropriate forum for redressal of her grievance.

Case Title : Vijay Gupta & Ors Vs Deeksha Sharma & Ors

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