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Judgment
M.Y. Eqbal, J.—These two applications have been filed by the Petitioners challenging the order dated 6.11.1992 passed by Sri R.P. Singh, Judicial Magistrate, 1st Class, Arrah, in Case No. 311 (C) of 1990 (Tr. No. 850 of 1992). Hence these applications were heard together and are being disposed of by this common order.
By the impugned order, the learned Judicial Magistrate rejected the application filed by the Petitioners for their discharge from the charges leveled against them alleged to have been committed by them u/s 494 of the Indian Penal Code.
The prosecution story, in brief, is that opposite party No. 2, the compainant, filed Complaint Case No. 311 (C) of 1990 in the court of the Chief Judicial Magistrate, Arrah, against the Petitioners for commiting offence punishable u/s 494 of the Indian Penal Code. It was alleged by the complainant that she is legally married wife of the Petitioner-Dwarika Nath Rai. She gave birth to six children. Further allegation is that the husband of the complainant developed illicit relation with the Petitioner Smt. Lalita Devi who is legally married wife of Balmiki Sharma. The Petitioner''s husband has finally married with the accused Petitioner Smt. Lalita Devi in Aranya Devi Temple, Arrah, Police Station Arrah town, District Bhojpur. According to the complainant, therefore, the Petitioners are guilty of the offence punishable u/s 494 I.P.C.
In the said complaint case cognizance was taken against the Petitioners and processes were issued and record was sent to the Judicial Magistrate, 1st Class, for disposal. However, at the time of framing of charge, both the Petitioners filed application for their discharge on the ground, inter alia, that there is no prima facie evidence of performance of second marriage as alleged by the complainant.
The said application was rejected by the Magistrate by the order impugned.
Mr. Braj Kishore Prasad No. 1, learned Senior counsel appearing for the Petitioners assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel has made two-fold submission. Learned Counsel firstly submitted that both the Petitioners, who are already married, categorically denied the allegation of second marriage. According to the learned Counsel there is no material on the record to prima facie prove the performance of marriage of the Petitioners which is a sine qua non for prosecuting them u/s 494 I.PC. In absence of positive evidence of valid marriage of the Petitioners, they are liable to be discharged. Learned Counsel relied upon the decision of the Supreme Court in the case of Kanwal Ram and Others Vs. The Himachal Pradesh Admn., . I do not find much force in the submission of the learned Counsel. It is true that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in a adultry or bigamy case. It is open to the court to reach a finding about the factum of marriage on the basis of evidence adduced by the prosecution including the evidence admissible under the Evidence Act. It is essential for the purpose of Section 17 of the Hindu Marriage Act, 1955, that the marriage to which this section of the Code applies, should have been celebrated with proper ceremonies and In due form. However, these are the facts to be looked into at the time of trial. From perusal of the impugned order it appears that the complainant had examined four witnesses who have supported the allegations made in the complaint petition. Learned court below rightly observed that at the time of framing of charge meticulous consideration of evidence and materials by the court is not necessary.
Mr. Prasad, learned Senior Counsel secondly submitted that the entire complaint proceeding stood abated by reason of the death of the complainant. Learned Counsel brought to my notice the supplementary affidavit filed by the Petitioners stating that Opposite party No. 2 died on 23.7.1996 in village Katra, District Bhojpur. Learned Counsel has further drawn my attention to Section 198 of the Code of Criminal Procedure and submitted that the complainant was the only person aggrieved and after her death the proceeding cannot continue any further.
For better appreciation of the submissions, Section 198 of the Code of Criminal Procedure is reproduced herein-below:
Prosecution for offences against marriage. -(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence:
Provided that-
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person Is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him for obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of Sub-section (4) may make a complaint on his behalf.
(c) Where the person aggrieved by an offence punishable u/s 494 or Section 495 of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father''s or mother''s brother or sister or with the leave of the Court, by any other person related to her by blood, marriage or adoption.
(2) For the purpose of Sub-section (1), no person other than the husband, of the woman shall be deemed to be aggrieved by any offence punishable u/s 497 or Section 498 of the said Code:
Provided that in the absence of the. husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf:
(3) When in any case, falling under Clause (a) of the proviso.to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the court is satisfied that there is a guardian, so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in Clause (b) of the proviso to Sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his commanding officer, and shall be accompanied by a certificate signed by that officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being granted to the husband.
(5) Any document purporting to be such an authorisation and complying with the provisions of Sub-section (1), and any document purporting to be a certificate required by that Sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence u/s 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his wife, the wife being under fifteen years of age. if more than one year has elapsed from the date of commission of the offence.
(7) The provision of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
From perusal of the aforesaid section it is manifest that the court shall not take cognizance of the offence punishable u/s 494 of the Indian Penal Code except upon a complaint made by person aggrieved by the offence. Clause (c) further provides that where the person aggrieved by the offence punishable u/s 494 I.PC. is the wife, then the complaint may be made on her behalf by her relative mentioned in the said clause. It is, therefore, clear that where the aggrieved person is a woman, who cannot be compelled to appear in public according to the manner and custom of the country or is an idiot or a lunatic or is from sickness or infirmity is unable to make a complaint, some other persons may make complaint on his or on her behalf but in such case leave of the court is necessary before a complaint can be made on behalf of another. The provision of this section is, therefore of no help to the Petitioners. Admittedly, the person aggrieved was his wife, the complainant, who lodged complaint and cognizance was taken against the Petitioners.
Now the question arises as to whether such proceeding is allowed to be continued after the death of the complainant. Though there is no specific provision in the Code of Criminal Procedure for continuance of the proceeding by any relation on death of the complainant, the proceeding cannot be allowed to be stultified, in view of Section 198 of the Code of Criminal Procedure, and the court in its discretion can allow the prosecution to continue by a relation of the deceased complainant. In the instant case it appears that notice was issued by this Court to the complainant-Opposite party No. 2 and she had appeared through advocate by filing Vakalatnama. It further appears that after the death of the complainant-Opposite party No. 2, no relatives mentioned in Clause (c) of Section 198 of the Code appeared in this case nor any application has been filed on her behalf. In such a situation I do not think it desirable for continuation of the proceeding which is pending for the last eight years. I am, therefore, of the view that by reason of the death of the complainant and for want of any action by the relatives of the deceased complainant, the complaint proceeding is liable to be dismissed, as abated.
Having regard to the facts and circumstances of the case, these application are allowed and the impugned order and the entire criminal proceedings of complaint case No. 311 (C) of 1990 pending in the court of the Judicial Magisgrate, 1st Class, Arrah, is quashed.