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Judgment
S.K. Chattopadhyaya, J.—In both these cases the Petitioners have impugned the order dated 17.2.2000, by reason of which the Judicial Magistrate 1st Class, Patna, has rejected the prayer for discharge of the Petitioners and fixed a date for framing of charges.
In order to appreciate the points raised in these applications allegations made in the complaint petition may be briefly stated:
The complainant Gayatri Sinha alleged, inter alia, in the complaint petition, filed before the Magistrate, that being legally married wife of accused No. 1 Sureshwar Nand Sinha, she was living with her husband at Azmer, where her husband was then posted. She remained there till 10th June, 1973 and thereafter returned from Azmer. According to her, behaviour of her husband and his family members were not good for the reason that her marriage was a Golat marriage, i.e. to say marriage of sister of her husband, namely, Premlata Sahay (the Petitioner in Cr. Misc. 13762/2000) was solemnized with her brother R.N. Sahay and no dowry either was given or taken by the complainant''s family in both the marriage because this was the settled condition of the Golat marriage. On 22.4.1971 after solemnizing the marriage of Premlata with R.N. Sahay, the family member of her husband started showing their unhappiness for not receiving dowry and started neglecting the complainant and finally became cruel. The complainant''s family members were not in a position to fulfill the demands of her husband or his family, particularly when there were settled terms and conditions of both the marriages. It was further alleged that the behaviour of her husband and his family members became very much harassing and cruel and ultimately on 10th of June, 1973 when complainant''s brother went to Azmer to meet her and for solving the dispute, her husband kicked out the complainant as well as her brother from the house. The complainant was compelled to leave her husband''s house for this reason and despite efforts being made by the complainant''s family members to sort out the dispute, the husband as well as his family members refused to keep the complainant without dowry. Her husband filed Miscellaneous Case No. 49 of 1976 in the court of District Judge, Azmer, Rajasthan for restitution of conjugal rights and during pendency of the case also filed a Divorce case being Case No. 152 of 1979. The District Judge of Azmer allowed the divorce case but on appeal being filed the Rajasthan High Court set aside the order of the District Judge in Civil Appeal No. 39 of 1985. Thus according to the complainant, she is still a legally married wife of Sureshwar Nand Sinha. Even during pendency of the divorce case, it is alleged, the family members of the complainant tried their best to pacify her husband and his family members but her husband did not agree to keep the complainant without fulfillment of their demands. The complainant had taken legal steps for restituting her conjugal rights by filing Misc. Case 57 of 1986 in the Court of District Judge, Patna, which is still pending. Subsequently, in the year 1986 the brother of the complainant could learn that her husband Sureshwar Nand Sinha has solemnised a second marriage after taking a lump sum dowry sometimes in latter part of the year 1985. The said second marriage was solemnized in the house of late Kirpalu Shankar at Jamral Road, Patna. The complainant getting this information filed an application before the Chief Secretary, Government of Rajasthan on 28.11.1986 requesting therein to enquire about her husband''s second marriage. An enquiry was made in which statement of colleagues of her husband, namely, Ramlal, Bansidhar Yadav, Bhanwarlal, Kalu Singh Jamadar and Gauri Shankar Kumawat were taken on 2.4.1987. All those witnesses have stated that her husband while posted as Superintendent, Amer Palace & Museum lived with a wife. The complainant''s brother made further enquiry from various sources and ultimately became confirm that her husband advertised in ''Chitragupta Priwar Sandesh'' in August, 1985, declaring himself as a candidate for marriage and accused Nos. 4, 5, and 7, named in the complaint petition, intentionally and knowingly settled the dowry and also managed in performing the illegal second marriage solemnized between her husband and Sudha Sinha, accused No. 2. According to the complainants accused Nos. 2, 3 and 7 knowing well that her husband is a married person and his wife is still alive entered in the matrimonial relation with her husband after giving a lump sum dowry. The complainant being confirmed that second marriage was solemnized by her husband filed a petition before the A.D.G. Police (Crime Branch), Mahila Kosang on 17.3.1989 which, after enquiry, found that actually her husband solemnized second marriage with Sudha. Sub-Inspector Girish Chandra Kumar submitted his enquiry report on 21.10.1989, which is in the file of Mahila Apradh Kosang. According to the complainant accused No. 5 is the sister of her husband and accused No. 4 is his brother-in-law (husband of accused No. 5). Accused No. 2, Sudha Sinha is residing with her husband and accused No. 3 is the father of accused No. 2 Accused No. 7 is the brother of accused No. 2, Sudha Sinha. Accused No. 6 is the sister of her husband. By giving this statement the complaint alleged that all the accused were well acquainted with the facts that accused No. 1 had a living wife as complainant. With these allegations the complainant prayed before the Magistrate to take cognizance of the offence. Cognizance was taken and the accused along with the Petitioners were summoned. After appearance the Petitioners filed a petition u/s 245 Code of Criminal Procedure praying therein to discharge, which prayer has been rejected by the Magistrate.
As noticed above, the Petitioner, Premlata Sahay has been arrayed as accused No. 6 in the complaint petition and this Premlata Sahay admittedly, according to the complainant, was married to R.N. Sahay, who is the brother of the complainant himself. Against this Petitioner only allegation is that she alongwith accused Nos. 4, 5, and 7 settled the amount of dowry and managed to perform the second marriage by her husband with Sudha, accused No. 2. Similarly, allegation against Petitioners of Cr. Misc. No. 11313 of 2000, who are accused Nos. 4 and 5 respectively in the complaint petition, is that they knowing well that the complainant is married wife of accused No. 1, settled the dowry and helped in performing the second marriage of her husband with Sudha.
It is well settled that to sustain a charge u/s 494 of the Penal Code the prosecution/complainant must prove that the accused husband had taken the second wife after solemnizing a Hindu marriage with her after performing due ceremonies for the marriage. Thus, the factum of second marriage has to be proved by cogent evidence.
In the present case from the impugned order it does not reveal that the learned Magistrate has considered this aspect of the matter on perusing the evidence on record. Moreover, which role actually the Petitioner (in Cr. Misc. 13762/2000) played being bhabhi of the complainant is also not clear. The Magistrate must be prima facie satisfied on evidence on record that there are sufficient evidence to frame charge u/s 494 and allied sections of the Penal Code, which, in my view, is lacking in these cases.
In this connection I may point out the statements recorded by the Magistrate which prima facie do not show that the alleged second marriage was performed by following all the ceremonies as pointed out by the Apex Court in the case of P. Satyanarayana and Another Vs. P. Mallaiah and Others,
It is true that if the Court is to frame charge it is not required to record its reasons, but it is also well settled that the court on perusal of evidence has to find out whether there exists sufficient ground so that a prima facie case is made out to proceed against the accused. Thus, accepting as it is the evidence, which prosecution proposes to adduce if no case is made out against the accused, court can discharge him. In the instant case the Magistrate has not dealt with this aspect of the matter at all which shows non-application of its judicial mind.
In the result, both the applications are allowed and the impugned order dated 17.2.2000 is set aside. The matter is remanded to the Magistrate for applying his judicial mind to the facts and circumstances of the case, specially the evidence available before him. The Magistrate must hear the parties and pass orders in accordance with law as expeditiously as possible.