RADHARANI PANDA Vs. ARNAPURNA PADHI

JUDGEMENT

(1.) PetitionerTs motion to implead Arnapurna Padhi alias Panda which was accepted by the learned Judicial Magistrate, First Class, Jaipur having been upset by the learned Additional Sessions Judge, Jaipur in revision, this application has been filed.

(2.) The background facts giving rise to this application are as follows: The petitioner filed a complaint in the Court of learned Sub-divisional Judicial Magistrate, Jaipur (in short, SDJMT) on the basis of which I.C.C. No. 396 of 1990 has been registered. Cognizance was taken by the learned SDJM of offence punishable under Sec. 498-A/34, Indian Penal Code, 1860 (in short, I.P.C.) Ramesh Chandra Panda, Keshaba Chandra Panda and Santilata Panda, the proforma opposite parties were directed to face trial. It is relevant to note that complaint was filed in respect of four persons including the present opposite party No. 1 Arnapurna Panda. Process was issued only against proforma opposite parties, but not against opp. party No. 1. After some witnesses were examined petition was filed by the complainant to implead opposite party No. 1. The prayer was accepted by the learned SDJM, but the learned Additional Sessions Judge, Jaipur reversed it. Essentially the dispute relates to question whether opposite party No. 1 married accused Ramesh Chandra Panda during subsistence of a valid marriage between the petitioner and accused Ramesh. According to the petitioner the marriage was solemnized according to Hindu rites and customs on 27.5.1982 in the premises of Goddess Biraja temple. After marriage, the complainant stayed in the house of accused Ramesh as his wife. But, since her father could not satisfy the demand of dowry she was illtreated, tortured and assaulted. Subsequently, Ramesh married Arnapurna notwithstanding her protest. Information was lodged before police, but no effective action was taken. Complaint was lodged before the learned SDJM on 22.12.1990. Her initial statement on solemn affirmation was recorded, and enquiry was conducted under Sec. 202, Cr. P.C. After recording the statement of one witness, no summons was directed to be issued against Arnapurna, though thy learned SDJM was satisfied that a prima facie case of commission of offence punishable under Sec. 498A was made out. The case was transferred to the learned Judicial Magistrate, first class, Jaipur (in short, TJMFC) for trial. Before charge three witnesses were examined. Charge was framed under Sec. 498-A read with Sec. 34, I.P.C. against three accused persons, besides under Sec. 494, I.P.C. against Ramesh. The three witnesses were cross-examined after charge, and discharged on 15.4.1992 and 23.7.1992. Two other witnesses were examined, cross-examined and discharged on 4.11.1992. An application was moved on 5.12.1992 purported to be one under Sec. 319, Cr. P.C. for summoning Arnapurna to face trial for commission of offence punishable under 494, I.P.C. along with accused Ramesh. This petition was allowed. Since the prayer was accepted, Arnapurna moved for interference in revision. By the impugned order the learned AddI. Sessions Judge has held that the evidence was not sufficient to prove commission of offence under Sec. 494, I.P.C. The essential elements to constitute an offence under Sec. 494, I.P.C. according to him, were that the necessary ceremonies like Hstanganthi, Saptapadi and Lajya Homa were to be proved in both the marriages of the accused. It was observed that no cognizance was taken of an offence punishable under Sec. 494, I.P.C. by the learned S.D.J.M., and therefore, charge could not have been framed. He did not accept the submission that while framing charge there was implied cognizance of an offence punishable under Sec. 494, I.P.C. He referred to the evidence of P.Ws. 1 to 4 and observed that they had earlier not stated about their direct knowledge regarding second marriage. They stated to have heard it from others. The persons from whom they heard were not examined, except P.W. 5 who was not named as a witness in the complaint petition.

(3.) The learned counsel for the petitioner submits that the approach of the learned Additional Sessions Judge is erroneous. He was not deciding the case on merits. He was primarily concerned with the question whether there was material to show that the person who was not an accused should be tried together with the accused. The learned counsel for Arnapurna on the other hand submitted that the application to implead Arnapurna was an after-thought and the revisional Court has rightly rejected the prayer.