Risalo and Others vs Shakuntla

Sarojnei Saksena, J.—The petitioners have filed this petition u/s 482 of the CPC (in short, the Code) praying quashment of Judicial Magistrate''s order Annexure P5 and resultant proceedings pending in the Court of Additional Chief Judicial Magistrate, Rohtak, arising out of a private complaint titled Shakuntla v. Suraj Bhan & Ors., filed by respondent Shakuntla under Sections 494 and 494/109, IPC and u/s 17 of the Hindu Marriage Act.

The complainant-respondent Shakuntla filed complaint Annexure PI averring that she was married to accused Suraj Bhan on April 22, 1984, as per Hindu rites in village Subana District Rohtak. After marriage she lived with accused Suraj Bhan in village Sherpur Kharkhouda. She also visited Visakhapatnam and stayed there for some time alongwith her husband. The marriage was consummated. Accused Suraj Bhan was in service of Indian Navy. When he was residing in Navy Nagar, Bombay, he got prepared family identity card wherein she was shown as his wife alongwith her photograph. Suraj Bhan accused was not satisfied with the complainant as she was not highly educated and not so beautiful. Petitioner-accused Risalo is sister and Balwan Singh and Ram Singh are brothers of accused Suraj Bhan. These petitioners-accused started taunting complainant for bringing less dowry. They also instigated accused Suraj Bhan that he should marry another girl with higher education. They sometimes suggested other families and proposed girls for his second marriage. She also averred that while Suraj Bhan was living in Narasapur in Andhra Pradesh, he met accused A. Annapurna. Suraj Bhan accused married A. Annapurna on May 20, 1990, as per Hindu rites. A. Annapurna also knew before marrying Suraj Bhan that the latter was already married to the complainant who is still alive. Thus, according to the complainant, accused Suraj Bhan and A. Annapurna have committed an offence u/s 494, IPC and petitioners-accused 2 to 4 have instigated accused Suraj Bhan to enter into second marriage alliance and thus have committed an offence under Sections 494/109, IPC.

The learned Magistrate before whom the complaint was filed recorded the statement of complainant u/s 200 of the Code and the statements of Sat Parkash PW2 and Jai Singh PW3 u/s 202 of the Code. On appraisal of this evidence, the learned ACJM Rohtak vide his order dated August 16, 1993 (Annexure P2) held that prima facie offence u/s 494, IPC is made out against accused Suraj Bhan and A. Annapurna but no offence is made out against petitioner accused 2 to 4 u/s 494/109, IPC. Hence only accused Suraj Bhan and A. Annapurna were summoned.

Complainant filed revision petition against the said order, challenging the finding of non-summoning of petitioners-accused 2 to 4 vide order Annexure P2. Mr. T.C. Gupta, Additional Sessions Judge, Rohtak, decided this revision on December 2, 1993 (Annexure P3) and observed that the learned Magistrate has simply not summoned accused 2 to 4 on the ground that in the photographs of the marriage of accused Suraj Bhan and A. Annapurna these petitioners-accused are not visible. Oral evidence adduced by (lie complainant was not considered by the learned Magistrate, whereby all the three witnesses have categorically stated that these accused 2 to 4 instigated accused Suraj Bhan to perform second marriage. Hence he ordered that these petitioners-accused be also summoned and tried alongwith other two accused. Thereafter these petitioners accused 2 to 4 were summoned by the Magistrate, before whom this case was pending, These petitioners appeared before the learned Magistrate and filed a petition u/s 245 of the Code, which was declined vide order dated May 28, 1994 (Annexure P4). Their revision petition was also dismissed by the Additional Sessions Judge, Rohtak, vide order dated August 17, 1995 (Annexure P5). Hence these petitioners-accused filed this petition u/s 482 of the Code for quashing the aforementioned orders Annexures P3, P4 and P5.

On being noticed the complainant-respondent failed to appear before the Court.

Petitioners'' learned Counsel assailed the order passed by Mr. T.C. Gupta, Additional Sessions Judge, Rohtak, on December 2, 1993, on the ground that when complainant filed this revision against Magistrate''s order (Annexure P2), they were not noticed. He pointed out that u/s 401(2) read with Section 399 of the Code before deciding this revision the learned Additional Sessions Judge should have noticed the petitioners, but without following this procedure he decided the revision at their back. No doubt, the Additional Sessions Judge should have noticed the petitioners before deciding the revision, but perhaps as the complaint was at the stage of Sections 203 and 204 of the Code, he did not give notice to the petitioners. Even then it cannot be said that it has caused any prejudice to the petitioners.

Petitioners'' learned Counsel''s second objection with regard to the order Annexure P3 is that the revision petition was not maintainable against the summoning order. In support of this contention, he relied on Kamaludin alias Kamal v. Mangal Dass and Ors. 1994(2) CLR 212. This contention has also no force in Kamaludin''s case (supra) in Single Bench of this Court has held that order summoning the accused is an interlocutory order, against which revision is expressly barred u/s 397(2) of the Code. In that case the accused persons Mangal Dass and others were summoned for the alleged offence u/s 420, IPC, under which the complainant filed the complaint. That order was passed u/s 204 of the Code. Respondents Mangal Dass and others filed revision against that order, which was allowed by the Additional Sessions Judge, Gurgaon, vide his order dated July 18, 1989, and he reversed the summoning order, whereupon complainant filed Criminal Revision before the High Court, challenging the revisional Court''s order. On those facts the learned Single Judge held that since the summoning order was passed by the Magistrate u/s 204 of the Code and the revision challenging the same order is expressly barred u/s 397(2) of the Code, the learned Additional Sessions Judge, Gurgaon, fell into an error in entertaining the revision and reversing the said order. Thus, it is obvious that the case is distinguishable so far as the facts of this case are concerned. In this case the learned ACJM passed the order Annexure P2 whereby he summoned only accused 1 and 5 for the offence alleged to have been committed by them u/s 494, IPC, but declined to summon petitioners-accused 2 to 4 for alleged offence under Sections 494/109, IPC. Thus, so far as these petitioners-accused were concerned, the order was final. Therefore, revision was not barred u/s 397(2) of the Code. Hence the learned Additional Sessions Judge Mr. T.C. Gupta has not fallen into any error in hearing that revision and allowing it.

So far the merits and propriety of the orders Annexures P4 and P5 are concerned, petitioner''s learned Counsel, relying on Smt. Manju Gupta v. Lt. Col. M.S. Paintal 1982 (2) CLR 179 contended that allegations in the complaint and other material before the Magistrate did not show even prima facie the complicity of these petitioners-accused for the alleged offence u/s 494 read with Section 109, IPC. No evidence was adduced by the complainant that when accused Suraj Bhan married A. Annapurna these accused persons were present there.

Even this contention has little force. The learned ACJM, Rohtak, while passing order Annexure P2 only observed that in the photographs showing marriage of accused 1 and 5 these petitioners-accused are not visible. Therefore, he did not summon these accused persons for the alleged offence under Sections 494/109, IPC. He failed to consider the oral evidence adduced by the complainant so far as this offence is concerned. The learned Additional Sessions Judge Mr. T.C. Gupta pointed out this error in the said order and observed that the complainant adduced oral evidence whereby she and her both the witnesses stated on oath that these petitioners-accused instigated accused Suraj Bhan to enter into another matrimonial alliance. Therefore, according to him/there was sufficient ground to proceed against these accused persons also for the alleged offence u/s 494 read with Section 109, IPC. Thereafter when the petitioners-accused filed a petition u/s 245 of the Code for the alleged offences, their petition was rightly declined by the ACJM, Rohtak, and their revision was also rightly dismissed by the Additional Sessions Judge, Rohtak.

The evidence adduced by the complainant was read over during arguments. Admittedly, petitioner No. 1 is the sister and petitioners 2 and 3 are brothers of accused Suraj Bhan. The complainant has categorically stated that these petitioners used to taunt her for bringing less dowry and they used to instigate Suraj Bhan to marry another woman who is more beautiful and better educated. They also submitted few proposals for that purpose. She is duly corroborated by Sat Parkash PW 2 and Jai Singh PW 3. The complainant has also stated that these petitioners-accused are constantly visiting the place of accused Suraj Bhan and A. Annapurna. On the basis of this evidence, the learned Additional Sessions Judge has rightly observed that this prima facie shows the complicity of the petitioners-accused for the offence under Sections 494/109, IPC as these witnesses have stated that they instigated accused Suraj Bhan to commit bigamy.

Thus, in my considered view, there is no substance in this revision.

Petitioners'' Counsel made last request that the petitioners be exempted from personal appearance before the ACJM, Rohtak. This prayer is allowed, but the ACJM, Rohtak, shall be at liberty to summon them for their personal appearance as and when he requires their personal presence necessary during the trial.

With the above observations, the revision being meritless, is dismissed.