Jeetendra Dhiman vs State of Bihar and Another

M. Y. Eqbal, J.—This application u/s 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing the order dated 20-1-1998 in Complaint Case No. 5(C)/94, whereby and where under the learned S.D.J.M., Sheikhpura allowed the prayer of the complainant-Opposite Party No. 2 to examine the witnesses mentioned in the petition dated 9-1-1998 and further also allowed examination of complainant and her father on recall.

The prosecution case in brief is that the marriage of the petitioner with Opposite Party No. 2 was solemnized on 27-6-1990. Soon after the complainant coming to her husband''s house, her father-in-law and other family members of the petitioner including the petitioner started torturing the complainant and demanding Rs. 25,000/- and a motorcycle. The petitioner forcibly brought her to her parent''s house and dispossessed her of her ornaments and clothes. The complainant-Opposite Party No. 2 then filed a complaint petition on 18-1-1994 in the Court of the learned Additional Chief Judicial Magistrate, Sheikhpura being Case No. 5(C)/94 against the petitioner and others.

The learned Sub-divisional Judicial Magistrate, Sheikhpura finding sufficient materials to proceed against the accused persons under Sections 498A 323 and 379 of the Indian Penal Code took cognizance on 4-3-1994. The learned Court below examined complainant on oath and made enquiry u/s 202 Cr. P.C. and thereafter took cognizance by the aforesaid order and issued summons against the petitioner and other accused persons. It appears that in pursuance to the summon the petitioner and other accused persons appeared in the Court and were granted bail. The Court below called for reports regarding the allegation of second marriage of the petitioner and after having considered the fact that both the reports are contradictory to each other confirmed the provisional bail earlier granted to the petitioner. Subsequently, the complainant examined number of witnesses before charge but no one said to have stated anything about the second marriage of the petitioner. However, charge was framed under Sections 498A 323 and 379 of the I.P.C.

It further appears that after framing of charge, the trial commenced and complainant examined some more witnesses, but it is said that none of the witnesses stated anything about the second marriage. While the trial was in -progress and going to be concluded, the complainant-opposite party No. 2 filed a petition in the Court below under Sections 244(2) and 311 of the Code of Criminal Procedure stating, inter alia, that she did not depose anything in the initial complaint or in cross examination in regard to second marriage. She had also failed to make out any allegation in her petition and as such an amendment petition was filed for alteration in the charge. However, it is alleged that the Court below without looking into the facts of the case allowed the prayer of the complainant for recalling of witnesses mentioned in the petition dated 9-1-1998 with respect to second marriage and also allowed the re-examination of complainant and her father on recall on the ground that the witnesses can be examined u/s 246(6) of the Code of Criminal Procedure, hence this application.

I have heard the learned Counsels for the parties.

On perusal of the record it appears that on 18-8-1997 charges were framed under Sections 498A 323 and 379 of the Indian Penal Code. Thereafter by a petition the complainant brought into record details of the second marriage solemnized by her husband which fact finds support from the report submitted by the police that the petitioner married with Kumari Renu daughter of Shiv Narain Vishwakarma, Gomoh, Dhanbad. Learned Magistrate after considering the entire fact of the case came to the conclusion that the allegation made by the complainant regarding cruelty upon her and later on removal from the house and performing the second marriage are acts done in the same transaction and if the charge u/s 494 of the Indian Penal Code is made out in evidence, there could be no difficulty in joint trial for all the charges. In my opinion, also, in view of Sections 220 and 223 of the Code of Criminal Procedure, there would be no difficulty for the Magistrate to proceed against the accused person u/s 494 of the Indian Penal Code if there are sufficient materials and evidence on record. It further appears that the petition dated 13-6-1994 filed by the complainant before framing of the charge, making the allegation of second marriage was treated by the Magistrate as part of the complaint petition. In that view of the matter also there is no illegality in allowing the prayer of the complainant to re-examine her self and other witnesses on this point.

Having regard to the facts and circumstances of the case, I do not find any reason to interfere with the order passed by the Court below. This application is dismissed.