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Allahabad High Court · body

1985 DIGILAW 626 (ALL)

Malti Gupta v. State of U. P

1985-05-24

KAMLESHWAR NATH

body1985
JUDGMENT Kamleshwar Nath, J. - This petition under section 482, Cr.P.C. is directed against an order dated May 4, 1984 contained in Annexure 3 to this petition passed by Munsif Magistrate of Sitapur rejecting an application dated February 24, 1984 of the applicants for quashing proceedings of their prosecution on the ground that the Court had no jurisdiction. 2. A complaint dated September 12/14, 1983 was filed by opposite party No.2 Smt. Bina against the present applicants in the lower court on the allegation that the applicants had committed an offence punishable under Section 494/109 IPC and 3 and 4 Dowry Prohibition Act, 1961. She was married to Chandra Shekhar Gupta, petitioner No.2 on May 13, 1982 at Sitapur where she lived with her parents. Petitioner No.3 Gaya Prasad is the father of Chandra Shekhar Gupta. Petitioner No.4 is the mother of Chandra Shekhar. On July 15, 1983 petitioner No.1 Smt. Malti Devi Shekhar (sic) petitioner No.2 Chandra Shekhar. 3. According to the complaint, petitioner No.1 married petitioner No.2 knowingly that the latter was already married with opposite party No.2 Smt. Bina and that his marriage took place at the instance of petitioners No.3 and 4. It was further said that at the time of marriage of the complainant with petitioner No.2 the tatter along with his parents, petitioners 3 and 4 obtained dowry from the father of the complainant. It was next said that subsequently petitioner Nos. 2, 3 and 4 made a demand of further dowry from the complainant. 4. According to the petitioners Smt. Bina resided at the place of Chandra Shekhar, petitioner No.2 in Balrampur only for a few days and pressed hard upon Chandra Shekhar to shift with her to Sitapur where her parents lived and where she was serving as a teacher. Chandra Shekhar did not agree and ultimately on June 25, 1982 the complainant left the house of the petitioner and has been living in Sitapur since then. 5. The Magistrate recorded the statement of the complainant on September 15, 1983 and that of Krishna Deo Gupta and Roop Chand, the father of the complainant on October 12, 1983. Chandra Shekhar did not agree and ultimately on June 25, 1982 the complainant left the house of the petitioner and has been living in Sitapur since then. 5. The Magistrate recorded the statement of the complainant on September 15, 1983 and that of Krishna Deo Gupta and Roop Chand, the father of the complainant on October 12, 1983. Holding that the 3 statements made out a prima facie case, he directed petitioners No. 2 to 4 to be summoned to stand trial for offences punishable under Section 494/109 IPC and section 3 of the Dowry Prohibition Act by order dated October 12, 1983. He simultaneously summoned the petitioner No. 1 to stand trial for the offence under Section 494/109 of the IPC. 6. On March 24, 1984 an application was made on behalf of the accused in the Court of the Magistrate' for dismissal of the complaint on the sole ground that the offence under Section 494, IPC was committed beyond the jurisdiction of the Sitapur Court and that the prosecution under Sections 3 and 4 of the Dowry Prohibition Act could not be initiated without the prior approval of the State Government. By the impugned order the learned Magistrate held that in view of Section 182 (2) of the Code of Criminal Procedure as amended by the Cr. P.C. Amendment Act, 1978 cognizance of the offence could be taken at Sitapur where the complainant had taken up a permanent residence. He further observed that the applicants were not summoned for the offence under Section 4 of the Dowry Prohibition Act and that no permission of the State Government was requisite for prosecution under Section 3 of the Dowry Prohibition Act for which alone the applicant Nos. 2 to 4 had been summoned. On this basis he rejected the application on May 4, 1984 against which this petition was filed under Section 482, Cr.P.C. on August 7, 1984. 7. The learned counsel for the applicants urged that the prosecution for the offence under Section 3 of the Dowry Prohibition Act was barred by limitation because Section 7 of that Act bars taking cognizance of an offence unless the complaint Is made within one year from the date of the offence. 7. The learned counsel for the applicants urged that the prosecution for the offence under Section 3 of the Dowry Prohibition Act was barred by limitation because Section 7 of that Act bars taking cognizance of an offence unless the complaint Is made within one year from the date of the offence. Since the taking and giving up (sic) of the dowry took place on the date of the marriage of the complainant, i.e. May 13, 1982, the complaint dated September 12/14, 1983 was clearly beyond the period fixed by Section 7 of the Dowry Prohibition Act. The applicants, therefore, could not be prosecuted for that of fence. 8. The learned counsel for the petitioners then urged that the facts of the case did not make out that the complainant had taken up "permanent residence" at Sitapur within the meaning of amended portion of Section 182 (2) of the Code of Criminal Procedure. There is absolutely therefore no substance in this contention because not only the complainant described herself to be residing at Sitapur where besides the residence of her parents she herself was serving as a teacher, it is petitioners' own case in this petition that the complainant, from the inception of the marriage did not want to live in Balrampur, the place of residence of the applicants but had been insisting upon the petitioner No.2 to shift with her to Sitapur and to live there. There is no doubt, therefore, that the complainant had taken up permanent residence in Sitapur, and, therefore, the offence under Section 494, IPC could be taken cognizance of by the lower court. 9. The learned counsel for the petitioners then urged that on the material on record of the lower Court offence under Section 494, IPC could not be treated to have been made out. The argument is that the second, marriage with petitioner No.1 took place in Muthiganj, District Gonda which could not have been witnessed by the complainant and her father Roop Chand and, therefore, they could not prove the performance of the essential ceremonies of marriage, in the absence of which the marriage could not be established. In respect of the statement of Krishna Deo Gupta, resident of Muthiganj, Gonda examined by the complainant under Section 202, Cr.P.C. it was urged that he too did not depose about the performance of the marriage ceremonies. 10. In respect of the statement of Krishna Deo Gupta, resident of Muthiganj, Gonda examined by the complainant under Section 202, Cr.P.C. it was urged that he too did not depose about the performance of the marriage ceremonies. 10. The contention cannot be accepted because the complainant is not required to prove the elements of marriage at the time of the statement under Section 200, Cr.P.C.; the Magistrate has only to be satisfied prima facie whether or not there was "sufficient ground for proceeding" as contemplated by Sections 203 and 204 of the Code of Criminal Procedure. The material requisite to satisfy the Magistrate that there is sufficient ground for proceeding is not the same as it is requisite for proving the guilt, or the full trial. The case of Amalyamal v. Raja Swami and others, 1983 Matrimonial Law Reports 351 is of no help to the petitioners because that related to a finding on conclusion of a trial and not at the stage of the issue of summons under Section 204 of the Code of Criminal Procedure. Krishna Deo Gupta had stated that he was present at the time of the marriage of petitioner No.1 on July 15, 1983 at the house of parents on the letter's invitation. The statement is that petitioner No. 2, son of petitioner No.3 was married to petitioner No.1,the daughter of Ram Narain in Muthiganj. This statement would afford adequate material to the Magistrate to be satisfied that there was sufficient ground for proceeding for the offence under Section 494/109, IPC. 11. The counsel for the petitioners then urged that there is no evidence that petitioner No.1 the second wife knew that Chandra Shekhar petitioner No. 2 was already a married person. The learned counsel for the opposite party refers to the statement contain ed in para 7 of the complaint that opposite party No. 1 had knowledge of the marriage of opposite party No. 2 with the complainant and, therefore, there was material to show that she had precedent knowledge. Th important feature in this respect is that in her statement under Section 260, CR.P.C the complainant did not depose that fad There is no material, therefore, to shot that the petitioner No.1 was aware at the time of her marriage with petitioner No that the latter already had the complainant as his living wife. Th important feature in this respect is that in her statement under Section 260, CR.P.C the complainant did not depose that fad There is no material, therefore, to shot that the petitioner No.1 was aware at the time of her marriage with petitioner No that the latter already had the complainant as his living wife. A prima facie case, there fore, can not be said to have been made a against petitioner No.1 Malti Devi. 12. It may be pointed out at this stage that in the application dated February 24, 191 before the Magistrate whose rejection, h led to this petition, the petitioners did n say that there was no material against the applicants to make out prima facie case. Even in this petition under Section 48 Cr.P.C. this aspect has not been specifically set up. However, since the lower Court record has been summoned and the mated has been perused, the point urged by the learned counsel has been considered. Their is no other point in this petition which, for reasons stated, should partly succeed. 13. The prosecution of the petitioner No, for the offence under Section 494, IPC and that of petitioners No. 2, 3 and the offence under Section 3 of the Dow Prohibition Act is quashed. The proceedings for prosecution of petitioner No.2 (hand Shekhar for the offence under Section 49 11 I.P.C and petitioners Nos.3 and 4 for the of fen under Section 494 read with Section 1 PC shall continue. They are directed appear in the court of the Magistrate concerned on June 24, 1995. The reconstruct Lower Court record be returned immediately and with due care, to the Court concerned.