SHANKAR SAHU Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This petition under Section 482 Cr.P.C. has been filed for quashing the order dated 21-5-84 passed by the learned Magistrate and the order dt. 31-8-85 passed by the learned Sessions Judge.

(2.) Shayam Narain Gupta opp. party No. 2 filed a criminal complaint against the applicant Shankar Sahu alleging that his sister's daughter Lal Mani was married to the accused applicant 11 years back. The applicant turned out Lal Mani from his house and kept her jewellery and clothes etc. Thereafter the applicant married Sheo Kumari Devi accused No. 5 on 30-6-82 though Smt. Lal Mani was still alive and her marriage with the applicant was also subsisting. It was thus alleged that the applicant had committed an offence under Section 494 IPC. After recording the statement of the complainant and of some witnesses under Section 200 and 202 Cr.P.C. the accused applicant was summoned to face trial. Thereafter the complainant led evidence under Section 244 Cr.P.C. and examined two witnesses namely Shayam Narain Gupta, P.W. 1 and Pattar, P.W. 2. At the stage of framing charge, a preliminary objection was raised on behalf of the accused applicant on the ground that complaint on which the accused was being tried was a second complaint and that the complaint filed by Shayam Narain Gupta, who was maternal uncle of Lal Mani, was not maintainable as no leave of the Court had been obtained. The objection was dismissed by the learned Magistrate by the impugned order 21-5-83 and the revision preferred against the said order was dismissed by the learned Sessions Judge on 31-8-85.

(3.) I have heard learned counsel for the applicant and have perused the record. So far as the second complaint is concerned, it may be stated that first complaint was dismissed on 4-8-82 on the ground that the complainant was not present and on the very next day the second complaint was filed. According to the complainant he had gone to call his counsel when the case was called out and the complaint was dismissed in his absence. The order of dismissal was passed at a time prior to the summoning of the accused and therefore the dismissal of the complaint did not amount to an order of acquittal in favour of the accused applicant. The second complainant is, therefore, fully maintainable in law.