JAMUNA RANI Vs. S KRISHNA KUMAR

JUDGEMENT

(1.) The Criminal Revision Case No. 280 of 1992 is filed by the petitioner against the order of discharge Passed in C.C. No. 19 of 1990 on the file of the J.F.C.M. Pathikonda, dt. the 31st of March, 1992. The Criminal Petition, Crl.P. No. 1097/1992 is filed by the petitioner against the order of dismissal passed in Crl. R.P. No. 11 of 1991 by the III Additional Sessions Judge, confirming the order passed in Crl.M.P. No. 106/91 in C.C. No. 19/1990 passed by the J.F.C.M. Pathikonda. The facts in brief are as follows :

(2.) A private complaint was filed by the complainant (wife) against the accused (husband) in the court of the J.F.C.M. Pathikonda, for the offence under S. 494 read with 109, IPC. A sworn statement of the complainant was recorded on the date of the complaint, i.e. on 26-2-90 and on the same day the complaint has been taken on file as C.C. 19/90 and process was issued for the appearance of the accused. The facts which lead to the filing of the above complaint was that on 26-2-1981 the first respondent married the complainant according to Hindu rites and rituals at Arya Vysya Choultry in Jurabalakota, Madanapall taluk. They lead married life for a short period. Thereafter, she was harassed by respondents, 1, 3 and 4 for not bringing dowry of Rs. 25,000/- and she was forcibly left in her parents house. As she had no means to maintain herself, she filed M.C. 4/83 on the file of J.F.C.M. Kuppam and she was awarded maintenance. The first respondent also filed a petition for divorce against the complainant which is pending. Taking advantage of the official position of respondent No. 3 the first respondent married the second respondent on 15-7-89 while the first marriage was still subsisting. Therefore, the complainant filed the above complaint against the husband for the offence under S. 494, IPC and against respondents 2 to 5 for the offence punishable under Ss. 494 read with 109, IPC.

(3.) After the process was issued for the appearance of the accused, all the witnesses who were mentioned in the list appended to the complaint, were examined and the last witness appended to the list was examined on 5-2-91. On the same day i.e. on 5-2-91, before the order of discharge has been passed by the Magistrate, a supplemental list of witnesses consisting of four persons with an application under S. 311 Cr.P.C. was filed to issue summons to those witnesses also. The learned Magistrate Registered the same as Crl.M.P. No. 106/91 and he held that either the complainant or the accused have no power or right to request the court to examine witnesses under S. 311, Cr.P.C. He further held that the power to summon witnesses under this Section is a special one and it is quite different from the power under other Sections of the Code, on the application of the parties who have a right to process. The parties to a case cannot dictate to a Court over the summoning of the witnesses under this Section and that the discretion to summon vests solely in the court alone and no compulsion can be placed upon any court to summon a witness, particularly in a case where the court has come to the conclusion that the evidence of the witness concerned would not be necessary. He further held while considering the scope and ambit of S. 244, Cr.P.C. that there is no provision under S. 244, Cr.P.C. to file a second list of witnesses at the stage of enquiry before framing the charge instituted otherwise than on a police report. For the above reasons, he dismissed the petition holding that the same is not maintainable. Consequent on passing of this order a discharge order has been passed against which the petitioner filed Crl.R.C. 280/92 in this Court.