Ashok Kumar Chauhan @ Ashok Chauhan & Ors vs State Of Bihar & Anr

Rakesh Kumar,J. Six petitioners, while invoking

inherent jurisdiction of this Court under

Section 482 of the Code of Criminal

Procedure, have prayed for quashing of an

order dated 2.12.2006 passed in Complaint

Case No.CA921 of 2006 by the learned Sub

Divisional Judicial Magistrate, Katihar. By

the said order, learned Magistrate has taken

cognizance of offence under Sections 498A and

494 of the Indian Penal Code and 3 and 4 of 2

the Dowry Prohibition Act.

2. Short fact of the case is that the

opposite party no.2, who claimed to be wife

of petitioner no.1, filed a complaint in the

court of learned Chief Judicial Magistrate,

Katihar, which was numbered as Complaint Case

No.CA921 of 2006 for the offence under

Section 498A of the Indian Penal code and 3

and 4 of the Dowry Prohibition Act. It was

disclosed in the complaint petition that

complainant's marriage with petitioner no.1

was solemnized nine years back. After

solemnization of the marriage, she continued

to live happily with her husband and her in-

laws, but subsequently, the accused persons

started demanding Rs.20,000/- as well as a

cow as dowry. Since it was not fulfilled, the

complainant was ousted from the house of her

in-laws and thereafter, complainant filed a

complaint case vide Complaint Case No.CA646

of 2005 in the court of Chief Judicial

Magistrate, Katihar for the offence under

Section 498A of the Indian Penal Code and 3

and 4 of the Dowry Prohibition Act. It was

disclosed that on false assurance given by

the accused persons, subsequently, the 3

complainant withdrew earlier complaint. The

complainant was thereafter taken back to the

house of accused persons and thereafter, he

again started to demand dowry and assaulted

the complainant and finally, she was ousted

from the house and thereafter, the present

complaint petition was filed. After filing of

the complaint petition, enquiry was conducted

and the learned Magistrate, by its order

dated 2.12.2006, took cognizance of offence

under Sections 494 and 498A of the Indian

Penal Code and Sections 3 and 4 of the Dowry

Prohibition Act. It may be indicated that in

the complaint petition, there was no

assertion regarding commission of offence

under Section 494 of the Indian Penal Code.

3. Aggrieved with the order of

cognizance, the petitioners approached this

Court by filing the present petition. On

19.7.2007, while issuing notice to opposite

party no.2, this Court directed that till

next date, further proceeding in the court of

S.D.J.M., Katihar in Complaint Case No.921 of

2006 shall remain stayed. Subsequently, the

petition was admitted after hearing learned

counsel for the petitioners as well as 4

learned counsel appearing on behalf of the

complainant and State on 2.8.2010. While

admitting, it was directed that during the

pendency of this application, further

proceeding in Complaint Case No.921 of 2006

pending in the court of S.D.J.M., Katihar

shall remain stayed. The order of stay is

still continuing.

4. The present case was admitted for

hearing and matter was heard at length,

however, none had appeared on behalf of

opposite party no.2.

5. While challenging the order of

cognizance, at the very outset, learned

counsel for the petitioners has argued that

the petitioner no.1 never solemnized marriage

with opposite party no.2. The stand of

petitioner is that the opposite party no.2

actually was married to one Natish Biswas.

Learned counsel for the petitioners has

referred to Annexure-2, which is a photo copy

of the voter list of the locality i.e. P.S.

Kadwa. The petitioner is also resident of

same P.S. Kadwa. It has further been

submitted by Mr. Helal Ahmad that even in

solemn affirmation, the complainant had 5

admitted that she was married with petitioner

no.1 after the marriage of petitioner no.1

with petitioner no.5. Learned counsel for the

petitioners has specifically referred to

page-7 of the petition i.e. the statement of

complainant recorded on solemn affirmation.

It has been submitted that since the

complainant herself had admitted that she was

second wife, as per the provisions of law,

section 498A of the Indian Penal Code will

not be applicable in such cases. It has been

submitted that marriage with second wife

during the life time of first wife, as per

the Hindu law, is considered as void

marriage. In absence of establishing the fact

that the complainant was actually and legally

married wife of the petitioner no.1, she is

not in a position to make a complaint that

the petitioners had committed offence under

Section 498A of the Indian Penal Code. It has

further been submitted that the learned

Magistrate, in a mechanical manner, has

passed the order. To substantiate his stand,

learned counsel for the petitioners has

referred to the order wherein cognizance has

also been taken under Section 494 of the 6

Indian penal Code. It has been submitted that

in no event second wife can allege for

commission of offence under Section 494 of

the Indian Penal code in relation to an

allegation of solemnizing marriage. In

support of his stand, learned counsel for the

petitioners has relied on a judgment of

Hon'ble Supreme Court reported in 1988

Supreme Court 644 (Smt. Yamunabai Anantrao

Adhav Vs. Anantrao Shivram Adhav). The

judgment referred by learned counsel for the

petitioners was of course in relation to a

case of maintenance under Section 125 of the

Code of Criminal Procedure, but fact remains

that in that case, it was held that under the

Hindu Marriage Act, second wife was not

entitled to maintain a petition for

maintenance under Section 125 of the Code of

Criminal Procedure since such marriage is

considered to be void ab initio. In the

present case, complainant herself had

admitted that the petitioner no.1 was married

with petitioner no.5 prior to marriage of the

complainant with petitioner no.1. Even

learned Magistrate had noticed in its order

regarding the stand taken by the complainant. 7

On aforesaid grounds, it has been submitted

that order of cognizance is liable to be set

aside.

6. Smt. Indu Bala Pandey, learned

Additional Public Prosecutor appears on

behalf of the State.

7. Besides hearing learned counsel

for the petitioners and the State, I have

also perused the materials available on

record. In the facts and circumstances of the

present case particularly averment made in

the complaint case as well as admission of

the complainant that she was a second wife,

the court is of the opinion that the learned

Magistrate has committed an error while

taking cognizance of the offence under

Section 498A of the Indian Penal Code. So far

as order of cognizance in respect of Section

494 of Indian Penal code is concerned, on the

basis of averment made in the complaint

petition, no such offence is made out.

8. Accordingly, the order of

cognizance dated 2.12.2006 passed in

Complaint Case No.CA921 of 2006 by learned

Sub Divisional Judicial Magistrate, Katihar

is hereby set aside and petition stands 8

allowed.

( Rakesh Kumar,J.)

PATNA HIGH COURT Dated 29.10.2010 N.A.F.R./N.H.