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1999 DIGILAW 863 (MAD)

M. Govindammal v. Dr. M. Thilakavathy

1999-08-20

A.D.V.REDDY

body1999
Judgment :- Petitioner/Second accused In C.C. No. 151/98 on the file of the Judicial Magistrate No. II, Poonamallee has preferred the revision aggrieved against the order passed in C.M.P. No. 1083 of 1999, dated 5-5-1999. 2. The case in brief is as follows : The respondent preferred a private complaint against the petitioner and another person for alleged offences under section 494 of the Indian Penal Code. The first accused had married her on 7-9-1997. His marriage with the complainant is subsisting. Learned Magistrate had framed charges under section 494, IPC, against both accused. The respondent filed a petition under section 216, Cr.P.C. for alteration of charge to include Section 109, I.P.C. against the second accused and also to include the date and place of marriage in the charge. The respondent was aware of the above said commissions, but she was not a party in the said petition and her name had been omitted and no opportunity was also given to her. Learned Magistrate allowed the petition and aggrieved against this, the present revision is filed. 3. Heard the learned counsel for both sides. The respondent filed a complaint under section 494, I.P.C. against both the accused and the same was taken on file in C.C. No. 151 of 1998 pending on the file of the Judicial Magistrate II, Poonammallee. The evidences of P.Ws. 1 to 3 were recorded in Chief and their cross-examination was deferred. Subsequently the learned Magistrate had framed charges under Section 494, I.P.C. against both the accused. Subsequently, the complainant filed a petition under section 216 to alter the charge in respect of the second accused to include Section 109, I.P.C. and also to include the date and place of the alleged second marriage. Learned counsel for the second accused mainly contended that the charge under Section 494, I.P.C. was already framed only on the available materials and there is absolutely no material to alter the section as Section 109, I.P.C. against the second accused in the case. 4. Learned counsel further stated that she was not made as a party in the petition, but however the order passed by the Court indicated that the petitioner is also a party in the said petition. I am of the view that there is no force in the contention of the learned counsel for the revision petitioner/second accused. 4. Learned counsel further stated that she was not made as a party in the petition, but however the order passed by the Court indicated that the petitioner is also a party in the said petition. I am of the view that there is no force in the contention of the learned counsel for the revision petitioner/second accused. It is manifestly clear from Section 216, Cr.P.C. that the Court may alter or modify the charge at any time before the pronouncement of the judgment. Now, according to the complainant, the marriage between the complainant and the first accused was subsisting and thereafter only the first accused has married the second accused. It is only under such circumstances, so far as A2 is concerned, a charge under section 494, I.P.C. read with Section 109, I.P.C. is absolutely necessary. It is also the duty of the complainant to establish when the second marriage took place only to fulfil the ingredient under section 494, I.P.C. read with S. 109, I.P.C. these materials are necessary. 5. Learned counsel for the complainant also, relied upon a decision of this Court in Rajammal v. Mohanraj, 1999 Mad LW (Cri) 22 wherein it is observed that a charge against the alleged second wife under section 494 held, is erroneous, as it should be against her as an abettor. This decision is applicable to the case on hand. Learned counsel for the revision petitioner relied on another decision reported in Harihar Chakravarty v. State of West Bengal, AIR 1954 SC 266 : (1954 Cri LJ 724) for the proposition that a direction to alter the charge so as to include an offence for which the accused was not originally charged can be given only if the trial Court itself could take action under section 227 and it could only do so if there were materials before it either in the complaint or in the evidence to just such action. 6. It is necessary to state that P.Ws. 1 to 3 were examined in chief and their cross-examination had differed. P.W. 11 narrated the entire incident relating to the second marriage of her husband with the second accused. Only for framing proper charge, it was altered by the Court in view of Section 216, Cr.P.C. and hence I am of the view that no prejudice is caused to the revision petitioner. P.W. 11 narrated the entire incident relating to the second marriage of her husband with the second accused. Only for framing proper charge, it was altered by the Court in view of Section 216, Cr.P.C. and hence I am of the view that no prejudice is caused to the revision petitioner. Morever the witnesses were not already cross-examined by any of the accused and now after framing of charges, the opportunity is also available to the revision petitioner to cross-examine all the witnesses again. There is no illegality or infirmity in the order passed by the Court below calling for any interference. 7. For the reasons mentioned above, the revision fails and is dismissed. Consequently, Crl.M.P. Nos. 4261 and 5716 of 1999 are also dismissed. Revision dismissed.