Digvijai Singh vs State of U.P. and Others

Krishna Kumar, J.—This revision has been filed against the order dated 17.2.1999, passed by the Additional Chief Judicial Magistrate, Kairana, whereby he recalled the summoning order and dismissed the complaint.

Learned Counsel for the revisionist firstly contended that there is no provision in Cr. P.C. for recalling of the order. This argument is not correct because in view of the famous case of Kailash Jauhari, the accused are entitled to file objections against the summoning order and the learned Magistrate after hearing the parties may recall the summoning order.

Learned Counsel for the revisionist further contended that Respondent No. 2, Smt. Poonam was married wife of one Ravindra Singh and suppressing this fact, she and her family members performed marriage of Smt. Poonam with the revisionist and thus, they committed offence u/s 495, I.P.C.

Learned Counsel for the Respondents contended that in view of the provisions of Section 198, Cr. P.C. these proceedings are barred because the revisionist cannot be deemed as lawfully wedded husband of Smt. Poonam.

However, Sections 494 and 495, I.P.C. make it clear that aggrieved person, may be husband or wife, who may make complaint. In this case, the husband shall be the aggrieved party when the factum of earlier marriage was concealed by the wife from the revisionist-husband, with whom the subsequent marriage was performed.

Learned Counsel for the revisionist contended that learned Magistrate could not take into consideration the panchnama, which is a waste paper in the eye of law because of adjudication of such types of panchnamas, there cannot be any legal divorce between the parties.

I am not convinced with the findings of the learned lower court that said panchnama could be deemed to be an act of the parties enacted bona fide. It may also be stated that in this case allegations have been made by the complainant that the opposite parties have the habit to perform marriage of Smt. Poonam with certain persons and thereafter they extort money from them. Again it cannot be held that there was no allegation of mala fide, and therefore, the case law mentioned in the order is not applicable.

Considering all the facts, it is clear that learned lower court committed illegality in recalling the order dated 11.8.1998.

In view of the above, this revision is allowed. The order dated 17.2.1999, is set aside. The objections filed by the accused-Respondents are set aside. The learned lower court is directed to proceed with the case in accordance with law.