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2001 DIGILAW 1431 (PNJ)

Hans Raj Rasewat v. Des Raj

2001-12-21

V.M.JAIN

body2001
Judgment V.M.Jain, J. 1. This is a petition under Section 482, Cr.P.C. filed by the accused petitioner, seeking quashment of the criminal complaint and the summoning order dated 22.5.1987 passed by the learned Magistrate, ordering the summoning of the accused petitioner and other co-accused under Sections 494/109, IPC. 2. In the present petition filed by accused petitioner Hans Raj, it was alleged that the petitioner is father of Ghansham Lal, who had married Sarita Rani, daughter of complainant respondent No, I Des Raj. It was alleged that Des Raj, complainant had filed a false complaint under Sections 404/109, IPC against petitioner and other relatives of the petitioner (respondents 2 to 6) and they have been falsely implicated as accused. It was alleged that in the criminal complaint, it was alleged by Des Raj, complainant, that the accused Ghansham Lal had contracted second marriage with one Asha Rani during the subsistence of his earlier marriage with Sarita Rani (daughter of Des Raj, complainant) and that the other accused had participated in the marriage. It was alleged that no offence, whatsoever, was made out against the accused petitioner. It was alleged that from the allegations made in the complaint, it was not proved that Ghansham Lal had contracted second marriage, during the subsistence of his earlier marriage. It was alleged that complaint was based on hearsay evidence. It was further alleged that the preliminary evidence led by the complainant was also insufficient to summon the petitioner as accused. It was alleged that since the solemnization of earlier marriage was not proved, the petitioner had not committed an offence. It was further alleged that the complaint was filed not by the first wife but by Des Raj, complainant. It was alleged that only first wife could be said to be aggrieved against the second marriage and she alone was competent to file the complaint. It was further alleged that the criminal complaint and the summoning order passed by the learned Magistrate were abuse of the process of the Court and were liable to be quashed. It was accordingly prayed that the complaint, summoning order and all subsequent proceedings be quashed. 3. In the present petition, accused petitioner Hans Raj had impleaded Des Raj complainant as respondent No. I and the other co-accused as respondents 2 to 9. Vide order dated 3.1.1998, "notice" was ordered to be issued and further proceedings were stayed. It was accordingly prayed that the complaint, summoning order and all subsequent proceedings be quashed. 3. In the present petition, accused petitioner Hans Raj had impleaded Des Raj complainant as respondent No. I and the other co-accused as respondents 2 to 9. Vide order dated 3.1.1998, "notice" was ordered to be issued and further proceedings were stayed. As per the report of the office, the service upon respondents was complete except respondent No. 5 (one of the co-accused). Vide order dated 5.9.2001, it was directed that it was not necessary to issue notice to respondent No. 5, as she was one of the accused and had not filed the petition seeking quashment of the criminal complaint and the summoning order passed by the learned Magistrate. No one has come present on behalf of the complainant-respondent No 1. Des Raj. 4. I have heard the learned Counsel for the accused petitioner and have gone through the record carefully. 5. Learned Counsel for the accused petitioner has submitted that the criminal complaint dated 5.3.1987, copy Annexure PI, was filed by the Des Raj, respondent No. I and that the learned Magistrate has passed the order of summoning dated 22.5.1997, copy Annexure P2, in the said criminal complaint filed by Des Raj. It was submitted that as per the allegations in the complaint, the first marriage between accused Ghansham Lal and Smt. Sarita Rani, daughter of Des Raj, complainant had taken place on 4.3.1984 and during the subsistence of said marriage accused Ghansham Lal had contracted second marriage with one Asha Rani on 1.3.1987. It was submitted that, in this manner, Des Raj, complainant had alleged that accused Ghansham Lal and other accused had committed offence under Sections 494/109, IPC, as the other accused had attended the second marriage. It was submitted that, in fact, criminal complaint filed by Des Raj, complainant and the summoning order passed by the learned Magistrate and all subsequent proceedings taken thereon were liable to be quashed, on the short ground that the criminal complaint filed by Des Raj for the offences under Sections 494/109 IPC was not maintainable. It was submitted that criminal complaint under Section 494, IPC could be filed only by first wife, if she was aggrieved against the alleged second marriage by her husband, and that father of the first wife was not competent to file the criminal complaint for the said offence. It was submitted that criminal complaint under Section 494, IPC could be filed only by first wife, if she was aggrieved against the alleged second marriage by her husband, and that father of the first wife was not competent to file the criminal complaint for the said offence. Reliance has been placed on the law laid down by this Court, in the cases reported as Baljit Kaur @ Kulvinder Kaur v. State of Haryana, I (1998) DMC 498, 1997(4) RCR (Criminal) 740 and Resham Singh and Anr. v. Kartar Singh and Ors., 1983 (2) RCR (Crl.) 497. 6. As referred to above the criminal complaint, copy Annexure PI, was filed by Des Raj, father of Smt. Sarita Rani (alleged first wife) with the allegation that Ghansham Lal (husband of Sarita Rani) had contracted second marriage with one Smt. Asha Rani on 1.3.1987, during the subsistence of first marriage with Sarita Rani. After recording preliminary evidence, learned Magistrate had ordered summoning of the accused, for the offences under Sections 494/109, IPC 7. In 1984 The Punjab Law Reporter 78: 1983(2) RCR (Crl.) 497 (supra), it was held by this Court that complaint filed by the father of the first wife was wholly incompetent, in view of Section 198 of the Code of Criminal-Procedure. It was further held that it was the first wife alone who was aggrieved against the said marriage and she alone was competent to institute the complaint and not her father and as such proceedings under Section 494, IPC were wholly without jurisdiction. However, in the said authority, the provisions of Section 198(1) proviso (c) of the Code of Criminal Procedure, had not been noticed and considered. However, in the said authority, the provisions of Section 198(1) proviso (c) of the Code of Criminal Procedure, had not been noticed and considered. Section 198, Cr.P.C. reads as under : "Prosecution for offences against marriage.- (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon 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 from 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 under [Section 494 or Section 495] of the Indian Penal Code (45 of .1860) 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 for, with the leave of the Court, by any person related to her by blood, marriage or adoption], (2) For the purposes of Sub-Section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 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 guaidian 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 counter-singned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purposes of making a complaint in person cannot for the time being be granted to the husband. (5) Any document purporting to be such an authorisation and complying with the proviso of Sub-section (4), 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 under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course 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 the 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. From a perusal of the above, it would be clear that the first wife, who could be aggrieved by the second marriage and/or the other relations, enumerated in Proviso (c) to Section 198(1), Cr.P.C. were competent to file a criminal complaint, for the offence under Section 494, IPC. From a perusal of the above, it would be clear that the first wife, who could be aggrieved by the second marriage and/or the other relations, enumerated in Proviso (c) to Section 198(1), Cr.P.C. were competent to file a criminal complaint, for the offence under Section 494, IPC. In 1997(4) RCR (Criminal) 750 (supra), similar view was taken and it was held that where the person aggrieved by the offences committed under Sections 494 and 495, IPC, happens to be the wife, the. complaint shall be made by such wife or by other relations, enumerated in proviso (c) to Section 198(1), Cr.P.C. In the reported case, the proceedings for the offence under Sections 494, 495 and 496, IPC, were quashed by the Court, as the FIR for the offences under Sections 406, 494, 495, 496, 498A, IPC and under Sections 3 and 4 of the Dowry Prohibition Act, had been lodged, even though in respect of the offences under Sections 494/495/496, IPC, no Court could take cognizance of the said offences except upon a complaint by the person aggrieved by the offence. It was further held that the Court could not take cognizance of those offences, on the basis of the FIR, presented by the Police. 9. In the present case, as referred to above, the complaint had been filed by Des Raj, father of Smt. Sarita Rani, who was married to accused, Ghansham Lal, on 4.3.1984 and a daughter was born on 28.5.1985. Later on, it was found that Ghansham Lal had contracted a second marriage with Smt. Asha Rani on 1.3.1987, during the subsistence of his first marriage with Smt. Sarita Rani. The complainant, Des Raj, being the father of Smt. Sarita, the first wife of accused, Ghansham Lal, was competent to file the complaint, in view of Proviso (c) to Section 198(1), Cr.P.C. Under these circumstances, it could not be said that the present complaint, filed by Des Raj, was not maintainable. 10. It was then submitted before me by learned Counsel for the accused-petitioner that there was nothing on the record to show that accused, Ghansham Lal, had contracted the second marriage with Smt. Asha Rani or that any ceremony had been performed in that regard. However, I find no force in this submission as well of the learned Counsel for the accused-petitioner. However, I find no force in this submission as well of the learned Counsel for the accused-petitioner. In para 6 of the complaint, it was specifically alleged by Des Raj that on 2.3.1987, his son-in-law, Inderjit Setia, had come to Fazilka and had told him that Ghansham Lal had married Smt. Asha Rani on 1.3.1987. It was further alleged therein that Inderjit Setia and bishamber Lal had gone to the house of accused No. 5 (Dharam Chand Batra), where they saw the ceremonies of Ghansham Lal and Asha Rani, being performed according to Hindu rites and that they told Dharam Chand that accused Ghansham Lal was already married to Sarita Rani, daughter of Des Raj and that the said marriage still subsisted and why they were spoiling the life of his daughter (Asha Rani), by marrying her. It was further alleged in the said complaint that all the accused were present at the time of the said marriage when the marriage ceremonies were being performed, according to Hindu rites by the Pandit, as all the accused knew about the subsistence of the earlier marriage and had intentionally allowed the second marriage to be performed. Said Smt. Asha Rani is the daughter of above said Dharam Chand Batra. 11. In view of the above said allegations, made by Des Raj, complainant, in the complaint, copy Annexure PI, in my opinion, at this stage, it could not be said that the criminal complaint, in question and the summoning order, passed thereon, are liable to be quashed, only on the ground that there is no allegation regarding the ceremonies in respect of the second marriage. In my opinion, this question would be decided by the Trial Court, on the basis of the evidence that may be led in the Trial Court. 12. No other point has been urged before me in this petition. 13. For the reasons recorded above, finding no merit in the present petition, the same is hereby dismissed. 14. Accused-petitioner, through his Counsel, is directed to appear before the learned Trial Court on 24.1.2002, for further proceedings, in accordance with law. The Trial Court shall summon the complainant and other accused and shall dispose of the case expeditiously, in accordance with law.