BINOY KUMAR GUPTA Vs. LEELA GUPTA

JUDGEMENT

(1.) THIS revisional application is directed against the order dated 15th June, 2006 passed by the learned Judicial Magistrate, 3rd Court, Alipore in complaint case No. C-3308 of 2005 thereby rejecting the application of the accused petitioner for dropping the complaint case due to non-filing of the list of prosecution witnesses in the complaint or by not mentioning names of witnesses for the complainant in the complaint petition filed by the O. P. No. 1.

(2.) MR. Mukherjee, the learned Advocate for the accused petitioner submitted that the marriage between petitioner and O. P. No. 1 was solemnised in the year 1967. Since 1969 the husband and wife are living separately. The O. P. No. 1 wife filed an application against the husband petitioner in the year 2003 claiming maintenance under section 125 of the Cr. PC. Thereafter, a civil suit was filed in the year 2004. The wife has filed the present complaint in the year 2005 against the husband petitioner for alleged offence under section 494 of the Indian Penal Code (in short the IPC ). In order to establish prima facie elements of offence under section 494 of the IPC and to summon the accused for committing such offence, essential ceremonies of both the marriages must be brought into the petition of complaint as well as in the statement of the witnesses recorded under section 200 of the Cr. PC. In the trial also to establish the charge under section 494 of the IPC strict proof of both the marriages is necessary. At the stage of issue of process against the husband for committing offence under section 494 of the IPC there must be elements of offence and evidence of performance of essential ceremonies of the marriage including the second marriage and, unless such evidence comes before the learned Magistrate, process under section 494 of the IPC cannot be issued. Besides that, in the complaint the provisions of section 204 (2) of the Cr. PC were not followed as list of the prosecution witnesses was not filed and the learned Magistrate could not have issued summons to the accused.

(3.) MR. Mukherjee further submitted that the learned Magistrate acted illegally by issuing process when in the petition of complaint as well as in the statement of the sole witness namely, the complainant, recorded under section 200 of the Cr. PC there was no evidence or materials disclosing performance of essential ceremonies of the alleged second marriage of the husband. Before passing of the decree in the civil suit the right or status of the parties cannot be claimed. A Court of Magistrate cannot decide the matrimonial status of the husband and the wife. The averments of the pleadings in the civil suit cannot be regarded as proof or establishment of materials of offence under section 494 of the IPC. As the essential requirements of the alleged offence under section 494 of the IPC were not at all established and as there was no material before the learned Magistrate in respect of alleged offence under section 494 of the ipc, the order of the learned Magistrate issuing process against this petitioner was bad in law. The order of the learned Magistrate issuing process against the petitioner under section 494 of the IPC should be set aside and the complaint case should be quashed. In support of his contention Mr. Mukherjee placed reliance on the decisions of the Hon'ble Supreme Court in Priya Bala Ghosh vs. Suresh Chandra Ghosh, reported in AIR 1971 SC 1153; Kanwal Ram vs. Himachal Pradesh Administration, reported in AIR 1966 SC 614; Santi Deb berma vs. Kanchan Prava Devi, reported in AIR 1991 SC 816 and Laxmi Devi vs. Satya Narayan, reported in 1994 (5) SCC 545.