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1998 DIGILAW 617 (PAT)

Lalita Devi v. State Of Bihar

1998-08-31

M.Y.EQBAL

body1998
Judgment M.Y.Eqbal, J. 1. 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. 2. By the impugned, order, the learned Judicial Magistrate rejected the application filed by the petitioners for their discharge from the charges levelled against them alleged to have been committed by them under Section.494 of the Indian Penal Code. 3. The prosecution story, in brief is that apposite party Na. 2, the complainant, filed complaint case No. 311 (C) of 1990 in the Court of the Chief Judicial Magistrate Arrah, against the petitioners far committing offence punishable under Sec. 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 of six children. Further allegation is that the husband .of the complainant developed illicit relation with the petitioner Smt. Lalita Devi wha is legally married wife of Balmiki Sharma. The petitioners husband has finally married with the accused petitioner Smt. Lalita Devi in Aranya Devi Temple, Arrah, Police Station Arrah town, District Bhajpur. According to the complainant, therefore, the petitioners are guilty of the offence punishable under Sec. 494, IPC. 4. In the said complaint case, cognizance was token against the petitioners and processes were issued and record was sent to the Judicial Magistrate, 1st Class Arrah, for disposal. However, at the time of framing of charge, bath the petitioners filed application far 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. 5. Mr. Braj Kishare Prasad No. 1, learned senior Counsel appearing far the petitioners assailed the impugned order being illegal and wholly without jurisdiction. Learned counsel has made two-fold submission. Learned Counsel, firstly submitted that bath 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 far prosecuting, them under Sec. 494, IPC. Learned Counsel, firstly submitted that bath 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 far prosecuting, them under Sec. 494, IPC. 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 V/s. The Himachal Pradesh Administratian. I do not find much farce 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 far the purpose of proving marriage in an adultery 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 Sec. 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. 6. 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 further drawn my attention to Sec. 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. 7. For better appreciation of the submissions. Sec. 198 of the Code of Criminal Procedure is reproduced herein below. "198. Prosecution for offences against marriage. Learned Counsel further drawn my attention to Sec. 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. 7. For better appreciation of the submissions. Sec. 198 of the Code of Criminal Procedure is reproduced herein below. "198. Prosecution for offences against marriage. - (1) No Court shall toke 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-sec. (4) may make a complaint on his be half. (c) where the per-son aggrieved by an offence punishable under Sec. 494 or Sec. 495 of the Indian Peal Code is the wife, complaint may be made on her behalf by her father mother, brother, sister, son or daughter or by her fathers or mothers 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 purposes of Sub-sec. (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Sec. 497 or Sec. 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. 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 subsection (1), shall be in writing, shall be signed or otherwise attested by the husband shall contain a statement to the effect that he has peen 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 (4), and any document purporting to be a certificate required by that Sub-sec. shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence. (6) No Court shall toke cognizance of an offence under Sec. 376 of the Indian Penal Code. where such offence consists of sexual intercourse by a man with his own 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 provisions of this section apply to the abetment of or attempt to commit an offence as they apply to the offence." 8. (7) The provisions of this section apply to the abetment of or attempt to commit an offence as they apply to the offence." 8. From perusal of the aforesaid section, it is manifest that the Court shall not toke cognizance of the offence punishable under Sec. 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 of fence punishable under Sec. 494. IPC 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 token against the petitioners. 9. Now the question arises as to whether such proceedings 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 Sec. 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 Sec. 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 preceding which is pending for the last eight years. In such a situation, I do not think it desirable for continuation of the preceding 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. 10. Having regard to the facts and circumstances of the case, these applications 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 Magistrate, 1st Class, Arrah, is quashed.