RAM SEWAK Vs. SAVITRIBAI

JUDGEMENT

(1.) THIS revision is directed against revisional order of the Court of Session, setting aside Magistrate's order rejecting the complainant's application for summoning witnesses.

(2.) IN a complaint filed by Savitri Bai (non -applicant No. 1 herein) against petitioner Ram Sewak on 21 -7 -1977, the Magistrate framed charge under Section 495, Indian Penal Code for the offence of bigamy coupled with concealment of former marriage against the petitioner on 22 -9 -1980. It was only after lapse of considerable time, i.e. on 31 -1 -1983, that the complainant could be further cross -examined after charge. The complainant on that day examined one more witness named Dayaram. Her two more witnesses Nathuram and Tulsi were also present but they could not be examined on that day because the Court's time was over. Those witnesses were directed to be bound over for the next date, i.e. for 17 -3 -1983. On that date those witnesses remained absent and the learned Magistrate directed that if the complainant paid process -fee, bailable warrants in the sums of Rs. 100/ - each may be issued against them. The complainant did not pay the process fee. The case suffered thereafter at least eight adjournments and almost every time the Court directed that if process fee was paid by the complainant, the remaining witnesses be summoned. Ultimately, on 11 -1 -1985, when the complainant herself was absent and the witnesses of the complainant were also absent, the Magistrate closed the complainant's evidence and fixed the case for examination of the accused. On the date fixed for examination of the accused, i.e. on 18 -1 -1985, the complainant re -appeared and made an application that the accused's statement might not be recorded and that her remaining witnesses as per previous list may be summoned. This application was rejected by the learned Magistrate on 23 -1 -1985. The accused, i.e., the petitioner herein, was examined on that day.

(3.) THE learned Additional Sessions Judge in the impugned order dated 4 -10 -1989 has observed that complainant's witnesses Nathuram and Tulsi were bound over by the trial Court for appearing on the next date of hearing. Those witnesses had not subsequently appeared and it was the responsibility of the trial Court to have procured their attendance and to get them examined. It was further observed that offence under Section 495, Indian Penal Code, under which charge had been framed, was punishable with 10 years' imprisonment, besides fine. That offence was triable as a warrant case. It was wrong on the part of the trial Court to have directed the complainant, in a case relating to such a grave offence, to pay process fee for issuance of process. On these grounds the Magistrate's order dated 23 -1 -1985, refusing to summon complainant's remaining witnesses, was set aside.