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2017 DIGILAW 1555 (KAR)

D. L Ramachandra v. Sumithra

2017-11-23

K.N.PHANEENDRA

body2017
JUDGMENT : 1. Heard the learned counsel for the petitioner and the respondents. 2. The respondent No.1 is making allegations that petitioner No.1 being her husband, and when their marriage is still in subsistence, the first petitioner has taken the second respondent as his second wife and got married her during the lifetime of the first respondent. She has also made various allegations against the complainant and stated that there are documents to establish the second marriage of the first petitioner with the second respondent before the trial Court. The learned Magistrate after going through the contents broadly coming to the conclusion that the allegations made in the complaint, are sufficient to attract Section 494 of IPC and taken the cognizance and proceeded to record the sworn statement of the complainant and her witnesses and thereafter tentatively came to the conclusion that it is a fit case to proceed against the accused by issuing process. Accordingly, Magistrate issued process u/s.204 of Cr.P.C. The said order passed by the learned Magistrate is called in question before this court. 3. The learned counsel for the petitioner though cited various rulings, but on going through the said rulings, it reveals that it is rendered after providing opportunity to the complainant to give proof of solemnization of the second marriage. He has also cited an un-reported decision of the Hon'ble Apex Court in Criminal Appeal No.574/2010, wherein the Hon'ble Apex Court has observed at paragraph 8 that - "If there are allegations that the husband has taken second wife and the said marriage has taken place during the subsistence of the first marriage, that itself sufficient to attract the provision and essential ceremonies of marriage were gone into or not, is a matter of trial. Truth-ness or falsity of the allegations made in the complaint has to be tested during the course of trial". 4. In view of the above said facts and circumstances of the case, I do not find any strong reasons to interfere with the order passed by the Magistrate in taking cognizance. Truth-ness or falsity of the allegations made in the complaint has to be tested during the course of trial". 4. In view of the above said facts and circumstances of the case, I do not find any strong reasons to interfere with the order passed by the Magistrate in taking cognizance. However, in a private complaint case, in order to frame charges against the accused u/s.244 of Cr.P.C., the complainant has to lead evidence and opportunity should also be given to cross examine the witnesses and thereafter, the court has to formulate an opinion whether there are sufficient materials to come to the conclusion that the materials are sufficient to convict the accused if the evidence of the complainant is un-rebutted. Therefore, in such an eventuality, the petitioner would get opportunity to file an application for his discharge before the trial Court u/s. 245 of Cr.P.C.. Therefore, with such liberty to the petitioner, there is no need to interfere with the order passed by the trial Court. Hence, the following order: 5. The petition is dismissed with a liberty to the petitioner to approach the trial Court by making necessary application for their discharge u/s.245 of Cr.P.C.. In view of dismissed of the petition, pending consideration of IA No.2/2017 filed for vacating stay, does not survive for consideration. Accordingly, IA No.2/2017 stands dismissed.