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S.L. JAISWAL versus STATE OF U.P.

High Court of Judicature at Allahabad

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S.L. Jaiswal v. State Of U.P. - APPLICATION U/s 482 No. 9145 of 1989 [2006] RD-AH 7789 (17 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

     Criminal Misc. Application No. 9145 of 1989

     Suraj Lal Jaiswal vs. State of U.P. & another

Hon. K.N. Sinha, J.

By means of the present application under Section 482 Cr.P.C., the applicant has sought quashing of charge sheet (Annexure No.4) under Section 494 I.P.C., pending in the court of Chief Judicial Magistrate, Allahabad.  The applicant, in this case, was married with opposite party no. 2 on 30.6.1975.  In the year 1977, the father of the opposite party no. 2 pretended that his younger daughter is ill and took opposite party no. 2 to his residence.  Thereafter, she was never sent back to her matrimonial home. Subsequently, opposite party no. 2 filed an application under Section 125 Cr.P.C. against the applicant, which was dismissed by the Magistrate on 24.5.1983 and the revision was also dismissed on 2.11.1983.  The opposite party no. 2 then filed a petition under Section 9, Hindu Marriage Act, which was decreed ex-parte against the applicant.  The applicant sent a registered notice to the opposite party no. 2 on 13.10.1987 asking to intimate the date on which the applicant should bring her back home.  The opposite party no. 2 thereafter lodged a report under Section 494 I.P.C. and after investigation a final report was submitted.  However, on further investigation, a charge sheet was submitted.  The allegations were that the applicant had, during the life time of the opposite party no.2, married with one Smt. Meena Jaiswal, whereas Smt. Meena Jaiswal was the wife of applicant's elder brother Vidya Sagar Jaiswal.  

The applicant has sought quashing of the charge sheet on the ground that the evidence collected by the investigating officer does not prove that Smt. Meena Jaiswal was ever married with the applicant.  No Havan or Saptapadi has been proved.  In fact Smt. Meena Jaiswal is wife of applicant's elder brother Vidya Sagar Jaiswal who lived in Varanasi since 1984.  She had also given birth to a son on 10.8.1987 at Nazreth Hospital, Allahabad.  The certificate is annexed as Annexure No. 5.  The witness examined is opposite party no. 2 Smt. Kamla.  No other witness was examined.  It was stated that applicant's father, two brother in-law and others had attended the marriage but no statement has been recorded.  Salik Ram Jaiswal, father of opposite party no. 2 had only given a hear-say evidence.  The applicant filed a petition under Section 13, Hindu Marriage Act against the opposite party no.2, which has been decreed on 19.9.1988 and their marriage stands dissolved.  On these grounds, the quashing of the charge sheet has been claimed.  The applicant filed a Supplementary Affidavit annexing certain statements.

A counter affidavit has been filed by the opposite party no. 2 on the ground that she was turned out of the house forcefully and hence she was forced to live with her parents.  The application under Section 125 Cr.P.C. has been wrongly rejected.  The applicant has been unkind and cruel to opposite party no. 2.  The police was in collusion with the applicant, hence submitted the final report.  However, by the indulgence of the circle officer, the case was further investigated and charge sheet was submitted.  Smt. Meena Jaiswal is not the wife of the elder brother of the applicant but is the second wife of the applicant with whom he has married during the life time of the opposite party no. 2.  The investigating officer interrogated all the relevant witnesses and their evidence is reliable.  The applicant obtained an ex-parte decree under Section 13 of the Hindu Marriage Act and when opposite party no. 2 came to know of this fact, she filed an appeal before this Court.

I have heard Shri Ashok Nath Tripathi, learned counsel for the applicant and Sri K.K. Srivastava, learned counsel for the opposite party No. 2, besides the learned A.G.A.   It is settled law that in order to prove the offence under Section 494 I.P.C. the first husband and wife should be legally wedded and it has also to be established that during the life time of the spouse, one of the spouse has married with some one else.  In this case, it is admitted fact that applicant and opposite party no. 2 were legally wedded husband and wife.

The learned counsel for the applicant has raised two folds arguments, firstly that the charge sheet is not maintainable and no cognizance can be taken by the Magistrate in view of Section 198 (1) of the Code of Criminal Procedure which lays down that:-

"No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence......"

Thus, the law requires that some complaint should be made by the aggrieved person.  In the present case opposite party no. 2 can be said to be aggrieved person.  The word ''complaint' has been defined in Section 2 (d) of the Code of Criminal Procedure, which means that:-

"Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

Thus, it clearly lays down that complaint should be made by the aggrieved person to the Magistrate, who shall follow the procedure laid down in Section 200 Cr.P.C. onwards and it does not include a police report, i.e. report under Section 173 (2) Cr.P.C.  No doubt, in the Explanation to Section 2 (d) a report by police officer, which discloses a non cognizable offence, shall be deemed to be a complaint but this explanation is not applicable in cases under Chapter XXII of the Indian Penal Code.  Thus, there was no complaint in the present case and charge sheet itself is not maintainable.  

Coming to the factual aspect of this case, any charge sheet can be quashed rarely when there is no evidence.  The applicant has filed the statements with the supplementary affidavit SA-1 to SA-16.

I have gone through all those statements.  There is none of the witnesses who could say that marriage with Smt. Meena Jaiswal was performed in his presence and any ritual as provided in the Hindu Law for a valid marriage, had taken place.  Consequently, by the evidence collected by the investigating officer the second marriage is not proved nor there is even a prima facie evidence regarding the said marriage.

Consequently, the application is liable to be allowed and it is hereby allowed.  The proceedings under charge sheet in question under Section 494 I.P.C. (case no.2859/1989 pending in the court of Chief Judicial Magistrate, Allahabad State vs. Suraj Lal Jaiswal, police station Attarsuiya, district Allahabad) are hereby quashed.

Dated:17.4.2006

RKS/9145/89


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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