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2013 DIGILAW 1472 (MP)

Raghuveer Singh v. Bhoori Bai

2013-11-28

B.D.RATHI

body2013
ORDER 1. The petitioners have preferred this criminal revision under section 397 read with section 401 of Code of Criminal Procedure [hereinafter referred to as “ the Code”] against the order dated 30.3.2010, passed by learned Additional Sessions Judge, Chachoda, District Guna (MP) in Criminal Revision No.10/2008, directing the Court of Judicial Magistrate First Class, Chachoda to take cognizance under sections 494/109 and 120B of IPC against the six accused persons including, present petitioners on a private complaint filed by respondent No.1 Bhoori Bai in that Court. 2. In brief, the facts of the case is that a private complaint filed by complainant Bhoori Bai(herein respondent No.1) before the Court against all six accused persons, including present petitioners for commission of offences punishable under sections 494/109 and 120B of IPC, to the effect that she was married with co-accused Santosh seven or eight years back in the village Ashakhedi according to Hindu rites and rituals. From their wedlock, one son, namely, Aditya aged about four years was born. After some time of the marriage, accused persons including, the present petitioners used to harass her and demanded dowry of Rs. 1,00,000/- . Her husband is not keeping her with him and threated to marry again if she did not fulfill demand of Rs. 1,00,000/-. The petitioners along with other co-accused hand in gloves conspired to marry Santosh with co-accused Rekha Bai. Co-accused Narayan Singh is father of co-accused Rekha Bai. Co-accused Preetam and Mahesh (herein petitioners No. 2 and 3) are brothers of co-accused Santosh and their father is Raghuveer Singh (herein petitioner No.1). The marriage of co-accused Santosh took place in Ujjain knowing the fact that the complainant and co-accused Santosh have already married each other. Their marriage is still in existence and no divorce took place between them. Despite the fact of first marriage, the petitioners along with co-accused conspired and abetted second marriage between co-accused Santosh and Rekha. 3. Learned trial Court after recording evidence of the complainant and of the witnesses under sections 200 and 202 of CrPC passed an order dated 11.12.2007 in Criminal Case No.977 of 2007, for taking cognizance only against co-accused Santosh (husband of respondent No.1 Bhoori Bai). Against the aforesaid order, then the respondent No.1 Bhoori Bai filed a revision for taking cognizance against remaining accused persons including present petitioners before the Sessions Court. Against the aforesaid order, then the respondent No.1 Bhoori Bai filed a revision for taking cognizance against remaining accused persons including present petitioners before the Sessions Court. The learned Additional Sessions Judge, Chachoda vide order dated 1.2.2008 allowed Criminal Revision No.10/2008 partially by modifying the order passed by trial Court and directed the trial Court to take cognizance against petitioner No.1 Raghuveer Singh and two other co-accused persons, namely, Narayan Singh and Rekha Bai under sections 109 and 120B of IPC and further directed to register a complaint against them and to try them according to law. 4. Thereafter, petitioner No.1 Raghuveer Singh preferred a revision before this Court, which was registered as Criminal Revision No. 227/2008. This Court vide order dated 15.5.2008 allowed the said revision and set aside the order dated 1.2.2008 passed by learned Additional Sessions Judge, Chachoda in Criminal Revision No.10/2008 and directed the trial Court to pass a fresh order after affording opportunity of hearing to five co-accused persons including present petitioners No. 2 and 3 against whom the revision has been filed. The learned Additional Sessions Judge in Criminal Revision No.10/2008 vide order dated 30.3.2010 directed the trial Court to take cognizance against all the accused persons,including present petitioners under sections 494/109 and 120B of IPC. Hence, this revision. 5. It is submitted by Shri Katare, learned counsel for the petitioners that as per provision of section 398 of the Code, the Sessions Judge cannot take cognizance by invoking the revisional powers under section 397 of the Code. Apart that, it is further submitted that from perusal of the evidence of PW 1 Bhuri Bai, PW 2 Gopal Singh and PW 3 Sagar Singh, no prima facie case was made out against the petitioners. Learned counsel for the petitioners further submitted that there is no evidence on record to prima facie prove the case that the petitioners have conspired with co-accused Santosh in regard to performing the second marriage with co-accused Rekha Bai. The complainant has utterly failed to adduce evidence to prove prima facie any offence is made out against the petitioners, so that Additional Sessions Judge directing the trial Court for taking cognizance under sections 494/109 and 120B of IPC against the petitioners. The complainant has utterly failed to adduce evidence to prove prima facie any offence is made out against the petitioners, so that Additional Sessions Judge directing the trial Court for taking cognizance under sections 494/109 and 120B of IPC against the petitioners. Therefore, on these grounds, this revision deserves to be allowed and the order in regard to taking cognizance passed by learned Additional Sessions Judge, Chachoda in Criminal Revision No.10/2008, is liable to be quashed. 6. In support of his contentions, Shri Katare, learned counsel for the petitioners has placed reliance on a decision of this High Court in Subodh Shukla(Major) vs. R. S. Dudee, 2007 (I) MPWN 103 . 7. On the contrary, it is submitted by Shri Bansal, learned counsel for the respondent No.1 that provision of section 398 of the Code cannot be read independently. This provision has to be read along with the provision of sections 399 and 401(1) of Code. It is also submitted that there was ample evidence produced by the complainant during enquiry under sections 200 and 202 of the Code. Therefore, the learned Additional Sessions Judge has rightly passed the order for taking cognizance against the petitioners. The order is being based on sound reasonings. No interference is called for. Hence, prayed for dismissal of this revision. 8. In support of his contentions, Shri Bansal, learned counsel for the respondent No.1 has placed reliance on the decision of this High Court in Hansraj Sharma @ Hansu v. Shivcharan Sharma, 2004 (3) MPLJ 485 ; on the decision of Delhi High Court in Narinder Pal Sood & Anr. v. State (Delhi Admn.) & Anr., 1991 CrLJ 141 and also the decision of Punjab and Haryana High Court in Bal Kishan Jain & Ors. v. Indian Overseas Bank & Ors., 1981 CrLJ 796 . 9. Heard the arguments advanced by learned counsel for the parties and also perused the entire documents available on record. 10. Having given my anxious consideration to the evidence available on record, it is evidentially clear that the second marriage of co-accused Santosh was solemnized with co-accused Rekha at the instigation of the petitioners (who are father and brothers of co-accused Santosh). They had knowingly arranged second marriage of co-accused Santosh with co-accused Rekha and had actively participated in the marriage of co-accused Santosh. They had knowingly arranged second marriage of co-accused Santosh with co-accused Rekha and had actively participated in the marriage of co-accused Santosh. So, it is apparent as the instigation and in pursuance of their conspiracy second marriage was performed and consequently, the act committed by the petitioners comes within the purview of sections 494/109 and 120B of IPC for which the learned Additional Sessions Judge cannot be said to have applied wrong approach in directing the learned trial Court for taking cognizance under sections 494/109 and 120B of IPC against all the accused persons including present petitioners. Therefore, the arguments advanced by learned counsel for the petitioners, on this count, cannot be accepted and the same is hereby rejected. 11. Now, the only point remains for consideration before this Court is whether the Additional Sessions Judge has exercised wrongly the powers for taking cognizance against the petitioners under section 397 of the Code, specially in view of provision of section 398 of the Code. 12. In regard to powers to be exercised by the revisional Court under revisional jurisdiction, this Court in the case of Hansraj Sharma @ Hansu (supra) has observed as under:- “The Court of Session is now clothed with the revisional powers under both sections 398 and 399 of the new Code. It is well settled that the revisional powers are to be read and construed together and not in isolated water tight artment. Therefore, sections 398 and 399 of the new Code would have to be read together as one integral whole. Therefore, when a Court of Session exercises its revisional jurisdiction, the power under both sections 398 and 399 of the Code could be exercised by it and it would be immaterial to investigate as to which specific provision has been actually invoked by it. The revisional powers of the Court of Session by virtue of section 399 of the Code could be substantially equated with those of the High Court under section 401(1) of the new Code of Criminal Procedure. The words “further enquiry” used in section 398 do not envisage within it the power to direct that person wrongly discharged be summoned or that a charge under any particular section or sections of Indian Penal Code or any other enactment be framed against him and he be put on trial. The words “further enquiry” used in section 398 do not envisage within it the power to direct that person wrongly discharged be summoned or that a charge under any particular section or sections of Indian Penal Code or any other enactment be framed against him and he be put on trial. Therefore, such a direction could not be given under section 398 of the Code of Criminal Procedure. Nevertheless, direction of such nature could legally be given under section 399 read with section 401(1) of the Code of Criminal Procedure which is repository of the larger powers vested in the Court of Sessions. In the light of the aforesaid discussion, the direction given by the Additional Sessions Judge seems to be well within his jurisdiction in exercise of revisional powers.” 13. Having thus considered the matter in its entirety and on going through the material available on record, this Court is of the view that the learned Additional Sessions Judge in Criminal Revision No.10/2008 has not committed any error in directing the learned trial Court for taking cognizance against all the accused persons, including present petitioners for commission of offences under sections 494/109 and 120B of IPC. In other sense, the direction given by learned Additional Sessions Judge is well-merited and warrants no interference in exercising the revisional jurisdiction of this Court. 14. It is made clear that the findings or observations made herewith by this Court shall not affect further proceedings of the trial Court. It is directed that the petitioners shall remain present before the trial Court and the trial Court is free to proceed further in accordance with law. 15. Consequently, this criminal revision fails and is hereby dismissed. 16. Let copy of this order be sent to the concerned Court for necessary information and compliance.