Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 739 (PAT)

Anandi Sah v. State of Bihar

2012-05-07

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT A.K. Trivedi, J.-Petitioners have prayed for quashing of order dated 17.06.1998 passed by learned Chief Judicial Magistrate. Katihar summoning the petitioners including others to face trial for an offence punishable under Section 498-A, 494, 406. 120B of the Indian Penal Code with regard to Complaint Case No. 901 of 1998 as well as order dated 06.08.1998 passed by learned Sessions Judge. Katihar in Cr. Revision No. 74 of 1998 dismissing the same along with prosecution. 2. Gayatri Devi, W/o Ajay Kumar Yadav (Accused No. 1) filed Complaint Petition No. 901 of 1998 against all together eleven accused disclosing therein that marriage in between Ajay Kumar Yadav with her was solemnized on 05-05-1992 and accordingly. she came to her sasural, Before solemnization of marriage accused Kailash Prasad Yadav (father-in-law). Jaikant Yadav (brother-in-law) insisted for Hero Hondo motorcycle and after providing the same, marriage was solemnized. Since after the marriage she has been subjected to torture and cruelty for fulfillment of demand of dowry. Meanwhile, she became pregnant. During course thereof she was not properly taken care of on account of which anyhow she managed to shift at her maika where she begotten a son ,on 03.08.1993. Accused persons did not facilitate her vidai on the condition that firstly their demand should be fulfilled. After becoming apprehensive of launching of case hurriedly the husband had filed petition for restitution of conjugal right. While the aforesaid petition was pending, again he had filed petition for divorce which has been Dismissed. Subsequently, thereof on 22.05.1998 her husband had, married with Navita Kumari @ Shobha, Daughter of Dilip Yadav stealthily. 3. Complainant was examined on S.A. and then thereafter the learned Chief Judicial Magistrate. Katihar took cognizance and summoned all• the accused including the petitioners against which Cr. Revision No. 74 of 1998 was filed before the learned Sessions Judge which was rejected at the stage of admission itself. 4. Contention on behalf of the petitioners are that they are not at all related with the husband of complainant Gayatri Devi and so summoning of petitioners to face trial for an offence punishable under Section 498-A. 406. 3/4 Dowry Prohibition Act are not at all maintainable. 4. Contention on behalf of the petitioners are that they are not at all related with the husband of complainant Gayatri Devi and so summoning of petitioners to face trial for an offence punishable under Section 498-A. 406. 3/4 Dowry Prohibition Act are not at all maintainable. With regard to application of Section 494, 120B of the Indian Penal Code, it has been submitted that the same is also not applicable in light of the fact that save and except mere assertion, nothing more has been asserted in the complaint petition as well as in the solemn affirmation of the complainant. The complainant had herself erased the other allegations so levelled against the petitioners and narrated that she has come to know that her husband has remarried with Navita Kumari @ Shobha in spite of the fact that they Were well aware that Ajay Kumar Yadav happens to be already married and is a father of a child at the behest of Anandi Sah. So submitted that summoning of petitioners to face trial by the learned Chief Judicial Magistrate, Katihar happens to be against the mandate of law and is accordingly fit to be set aside. 5. While controverting the submission raised on behalf of the petitioners. it has been submitted on behalf of opposite party No. 2 that true it is that petitioners are not at all wanted to be prosecuted for an offence punishable under Section 498-A, 406 of the Indian Penal Code. 3/4 of the Dowry Prohibition Act, but so far summoning to face trial for an offence punishable under Section 494. 120B is concerned, sufficient material has been brought up on record by the complainant through complaint petition as well as by way of solemn affirmation. For the purpose of taking of cognizance coupled with summoning of accused only a prima facie material has to be traced out which, the complainant has succeeded to prove. Hence, instant petition happens to be misconceived. 6. The learned AC to AAG-IX has endorsed the argument made on behalf of opposite party No.2 and submitted that successive orders are just legal and proper and is fit to be confirmed. 7. From the narration of the complaint petition as well as from the S.A., it is abundantly cleat that petitioners are not at all related with the husband of complainant namely. 7. From the narration of the complaint petition as well as from the S.A., it is abundantly cleat that petitioners are not at all related with the husband of complainant namely. Ajay Kumar Yadav till 22-05-1998, the date on which it is said that Ajay Kumar Yadav had solemnized second marriage with Navita Kumari @ Shobha. Daughter of Dilip Yadav who got it solemnized at the behest of Ravi Lal Yadav. Jai Narayan Prasad in spite of knowing the fact that Ajay Kumar Yadav was already married and happens to be father of a child. So, certainly the events whatever visualized before 22.05.1998 relating to torture and cruelty as well as deprivation of ornaments of the opposite party No.2, for that petitioners are not at all held to be responsible. 9. Neither in the complaint petition nor under the S.A. the opposite party No.2 had disclosed that any ceremony was effected/performed during course of solemnization of second marriage. For the purpose of attracting Section 494 of the Indian Penal Code the following ingredients are essential to surface: (a) There should be subsistence of first legal valid marriage. (b) On the date of second marriage, the continuance of first marriage must be in existence. (c) The second marriage must follow with necessary ceremonies as required by personal law governing the parties. 9. In case of absence of the aforesaid ingredients, in offence under Section 494 of the IPC could attract and for that reference may have AIR 1979 SC 713 . 10. In Surjit Kaur v. Garja Singh and others. reported in AIR 1994 SC 135 , it has been conclusively held that the bare fact of a man and women living as husband and wife does not at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife." In Lokhande case reported in AIR 1965 SC 1564 the prosecution had commenced on the plea that second marriage was performed in "Gandharava" form and so no ceremony were necessary and therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of Gandharava marriages ceremonies were required to be performed. In that background, it was held that even in the case of Gandharava marriages ceremonies were required to be performed. To constitute bigamy under Section 494, IPC the second marriage had to be a valid marriage duly solemnized and as it was not so solemnized it was not a marriage at all in the eye of law and was therefore invalid. 11. Now coming to facts of the case, as stated above save and except arraying as an accused and disclosing that her husband Ajay Kumar Yadav had married with Navita Kumari @ Shobha at the behest of other accused is not going to fulfil the ingredients attracting Section 494 of the Indian Penal Code. The following paran1eters for quashing a criminal prosecution has been laid down by the Hon'ble Apex Court in State of Haryana and others v. Bhajan Lal and others, in reported in AIR 1992 SC 604 . "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any. accompanying the FIR do not disclose a cognizable offence. justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 12. As for want of material to fulfil the ingredients of Section 494 of the Indian Penal Code, the prosecution there under cannot be permitted and so far application of other provisions are concerned, that are not at all attracted hence summoning of petitioners in the aforesaid background appears to be bad. Consequent thereupon, the order dated 17.06.1998 passed by learned Chief Judicial Magistrate, Katihar summoning the petitioners along with others to face trial relating to Complaint Case No. 901 of 1998 is quashed to the extent of petitioners only. Thus, petition is allowed, but without cost. Petition allowed.