SURENDRA KUMAR JAIN Vs. RAJKUMARI

JUDGEMENT

(1.) THE order under challenge in this revision by an accused is an order by Additional Sessions Judge under Section 398, Criminal Procedure Code setting aside order of discharge recorded by Chief Judicial Magistrate and directing further inquiry.

(2.) A complaint was filed by non -applicant No. 1, Rajkumari in the Court of C.J.M., Vidisha, on 1 -2 -1984, alleging that she was legally married wife of petitioner Surendra Kumar Jain, but the latter despite that marriage had contracted a second marriage with one Sudha Jain on 22 -11 -1983. The petitioner had thus committed the offence of bigamy under Section 494, Indian Penal Code and his parents and brother, second wife Sudha Jain and her father had abetted the offence of bigamy under Section 494/109, Indian Penal Code. As many as six accused persons were impleaded in that complaint. The learned C.J.M. after recording the evidence of the complainant and her witnesses under Section 244, Criminal Procedure Code passed an order on 24 -12 -1986 under Section 245(1) ibid, discharging all the accused persons of the offences alleged against them. Aggrieved by that order, non -applicant No. 1, Rajkumari went in revision to the Court of Session, Vidisha. The Third Additional Sessions Judge, Vidisha on 1 -10 -1990 passed an order setting aside the said order of discharge and sending back the case to C.J.M., Vidisha, for further inquiry, observing that it was improper to have discharged accused persons and further observing that offence under Section 498A, Indian Penal Code was also disclosed from the evidence and directing that it might be considered, if charge under that offence too deserved to be framed against accused Nos. 1 to 3, i.e., the petitioner and his parents. It is that order which is under challenge in this revision. The petitioner is only one of the accused persons whose order of discharge was set aside by the Additional Sessions Judge. Yet, he alone has brought this revision, in which the complainant has been impleaded as one of the non -applicants i.e., N.A. 1 and the petitioner's own parents as non -applicants 2 and 3. The other discharged accused persons do not figure anywhere in the array of the parties.

(3.) THERE is no doubt that a part of the impugned order of Additional Sessions Judge, inasmuch as it directed considering the question, if charge of the offence under Section 498A, Indian Penal Code was made out against accused persons, was clearly unsupportable. It is stated in the complaint itself (in paragraph 10 thereof) that the complainant was last taken to her parental house in Bhopal by the petitioner (her husband) on 29 -9 -1979 and since then the complainant has been living in the parental house and was not taken back to her matrimonial house. Complainant Rajkumari (P.W. 1) in her evidence also deposed (in para 13 of her evidence) that she was living in her parental house since the year 1979. The alleged cruelty by the accused persons could therefore be practised, if at all, only in the year 1979 or before that. But the act of subjecting a married woman to cruelty on the part of her husband or husband's relatives came to be made independently an offence only in the year 1983, when Section 498A, Indian Penal Code was enacted. Section 498A, Indian Penal Code did not, and in view of prohibition contained in Article 20(1) of the Constitution of India, could not, create the offence with retrospective effect. Hence Section 498A, Indian Penal Code could not have been applied to alleged acts of cruelty committed in the year 1979 or before that. As such, the impugned order of the Additional Sessions Judge in so far as he directed consideration of the question whether a charge could be framed against any accused person under Section 498A, Indian Penal Code, was clearly wrong.