INDUBEN CHHAGANOMAL Vs. ARJANDAS JETHANAND CHHABARIA

JUDGEMENT

(1.) An interesting question with regard to the interpretation of sec. 484 (2) of the Code of Criminal Procedure 1973 (2 of 1974) arises in this appeal against an order of acquittal passed in appeal by the lower appellate court in favour of respondents Nos. 1 2 and 3 original accused Nos. 1 2 and 5.

(2.) The appellant before this court is the original complainant who filed a complaint against her husband Arjandas Jethanand Chhabaria original accused No. 1 and four others that is original accused Nos. 2 to 5 on the allegation that while the complainants marriage with accused Arjandas was subsisting he contracted a second marriage with accused No. 2 Bharati alias Bina on 14th February 1971 in which act accused No. 2 that is the alleged second wife parents of accused No. 1 viz. accused Nos. 3 and 4 and accused No. 5 brother of accused No. 4 aided and abetted and that therefore accused No. 1 had committed an offence under sec 494 of the Indian Penal Code and the rest of the accused had committed an offence under sec. 494 read with First sec. 109 of the said Code. The learned Judicial Magistrate First class second court Baroda who heard the said criminal case No. 8133 of 1973 on the evidence led before him came to the conclusion that the complainant had proved that the marriage between her and accused Nos. 1 was subsisting on 14th February 1971 when accused No. 1 remarried accused No. 2 and that accused No. 2 and 5 aided and abetted the same. But so far as accused No. 3 and 4 are concerned he found that the complainant had failed to prove her case against them. He therefore passed an order dated 23rd September 1975 convicting original accused Nos. 1 2 and 5 for the offences with which they were charged and awarding sentence of R. I. for six months and a fine of Rs. 300.00 in default further R. I. for one month to each of the convicted accused and acquitting accused Nos. 3 and 4. It may be noted at this stage that the complaint was filed before the Code of Criminal Procedure 1973 (Act 2 of 1974) hereinafter referred to by the new code had come into force and the proceedings were pending before the learned Magistrate when the new Code came into force. The learned Magistrate therefore followed the procedure prescribed under the Code of Criminal Procedure 1898 (5 of 1898 that is the old Code while dealing with and disposing of the said complaint.

(3.) Aggrieved by the said order of conviction and sentence passed against them the convicted accused that is accused Nos. 1 2 and 5 preferred criminal appeal No. 113 of 1975 in the court of the Additional Sessisions Judge Baroda. In this appeals the State of Gujarat was made a party respondent and the original complainant was neither made a party nor was any notice of the said appeal served on her and the appeal was disposed of after hearing the appellants that is accused Nos. 1 2 and 5 and the respondent State of Gujarat. The learned Additional Sessions Judge Baroda by his order dated 5th June 1976 allowed the said appeal he having come to the conclusion on appreciation of evidence that the complainant had failed to establish the bigamous marriage on the part of accused No. 1 as alleged and he therefore set aside the order of conviction and sentence passed by the trial court against the said accused and acquitted them of the offences with which they were charged. It is against this order of acquittal passed by the lower appellate court that the original complainant has preferred this appeal after having obtained the necessary leave to appeal from this court.