LILAWATI Vs. SURINDER KUMAR

JUDGEMENT

(1.) THE material facts leading to this petition under section 482 of the Code of Criminal Procedure are as follows : Leelawati, petitioner, was married to Surinder Kumar, respondent No. 1, in 1973. Her case is that she lived with her husband at Nabha for initial six months of the marriage whereafter the husband left her and moved away to Khanna. On her application, she was awarded maintenance under section 125 of the Code of Criminal Procedure by the Judicial Magistrate. Later on, the husband, respondent No. 1, married again one Sawarna Devi, respondent No. 3 at Patiala. The petitioner filed a complaint, under sections 494 & 120-B of the Indian Penal Code on 14.9.1983 against her husband, both his parents as well as the second wife. During the pendency of the proceedings, father of the alleged second wife died and now respondent Nos. 1, 3 and 4 are the only respondents left.

(2.) THE learned Judicial Magistrate Nabha summoned the accused-respondent Nos. 1, 3 and 4, recorded statements of six witnesses and by order dated 23-7-1987 dismissed the complaint on the ground that he had no territorial jurisdiction in view of the provisions of Section 177 of the Code of Criminal Procedure. The aggrieved wife filed a revision which was dismissed by the learned Additional Sessions Judge, Patiala, by order dated 8-6-1988, Annexure P-2. Two grounds were pressed before the learned Additional Sessions Judge. Firstly, it was contended that the evidence having been recorded under section 244 of the Code of Criminal Procedure and the learned Magistrate having decided to dismiss the complaint it was incumbent on him to have considered the evidence on record with a view of seeing whether there was a prima facie case made out in terms of Section 245 of the Code of Criminal Procedure.

(3.) IT will be seen that the words, "or the wife by the first marriage has taken up permanent residence after the commission of the offence" were added by the Code of Criminal Procedure (Amendment) Act, 1978. A perusal of the complaint shows that at two places, in the title and at the foot of the petition, the wife described herself as resident of Nabha. It is also clear from the averments made in para 2 of the complaint that she had last resided with her husband at Nabha. Both these fasts have not been noticed by the trial Court and have not been given due importance by the learned revisional Court. This has resulted in justice being denied to the petitioner who is compelled to run from pillar to post to seek justice. This is an abuse of the process of the Court and it cannot be countenanced. Both the orders dated 23.7.1987, Annexure P-1 and 8-6-1988, Annexure P-2, are, therefore, quashed. It is directed that the complaint shall be entered against its original number by the learned trial Magistrate at Nabha and from the stage it was dismissed, he shall proceed further in accordance with law. Parties through their counsel are directed to appear in the trial Court at Nabha on 5.6.1990. Order accordingly.