BALBIR SINGH Vs. DARSHANA KUMARI

JUDGEMENT

(1.) THE question of law arising in this reference relates to the interpretation of the expression "some person aggrieved by the offence" in Section 198(1), Code of Criminal Procedure (hereinafter to be called the Code), for the purpose of filing a complaint in respect of offences punishable under Chapter XX of the Indian Penal Code.

(2.) A brief resume of the facts in this case is also relevant for the purpose of proper appreciation of the controversy involved. Balbir Singh, Petitioner, was married to one Veena Rani, resident of Ferozepur and three children were born out of this wedlock. He subsequently contracted second marriage with Darshana Kumari. Respondent, without her having any Knowledge of the first marriage. When the factum of the second marriage came to light, one Gulshan Rai, related to the Respondent, got a case registered in police station City Fazilka, under Sections 420, 494, 495 and 120 -B, Indian Penal Code, against the present Petitioner, his father, mother and the sister. The accused, including the Petitioner, after their arrest and necessary investigation were challaned in the Court of the Judicial Magistrate, Fazilka. The charge, however, was framed under Sections 420 and 120 -B, Indian Penal Code and no charge was framed under Sections 494 and 495 of the Indian Penal Code, on the ground that cognizance of the said offence could not be taken under Section 198 of the Code. After trial, all the accused were acquitted by the trial Court by order dated February 7, 1977, holding that the prosecution had failed to prove its case against the accused who were entitled to the benefit of doubt. Thereafter, a complaint was filed by Darshana Knmari, Respondent, under Section 394/109, Indian Penal Code, against the present Petitioner and his co -accused in the Court of the Judicial Magistrate, First Class, Fazilka, on August 3, 1977, alleging inter -alia that the Petitioner contracted the second marriage with the Respondent on June 20, 1973, according to the Hindu rites with the active connivance of the other co -accused without informing her of the existence of his first marriage with Veena Rani and that it was after the lapse of a few months of the second marriage that she came to know of the Petitioner's first marriage and also the birth of children from the first wedlock. Therein, after the preliminary evidence had been adduced, the Magistrate came to the conclusion that a prima -facie case had been made out and as such, all the accused including the Petitioner, were summoned, - -vide his order dated March 18, 1978. This order along with the complaint, were challenged in a petition under Section 482 of the Code by the present Petitioner on April 11, 1978. Challenge therein was made on two grounds. Firstly, that the accused having been acquitted on February 7, 1977, in a challan case, subsequently complaint could not be instituted on the same facts and allegations. Secondly, that under Section 198 of the Code, Darshana Kumari, Respondent, according to the allegations in the complaint, had the status of second wife and as such, had no locus standi to file the complaint and the criminal Court had no jurisdiction to take cognizance of the said complaint for the offence under Section 494, Indian Penal Code. Bains, J., as is clear from his order dated August 21, 1973, was of the view that the first contention was not tenable because the accused had not been charged under Sections 494 and 495, Indian Penal Code, in the first criminal case initiated against the Petitioner and his co -accused on the basis of the first information report registered in the police station and that they had been acquitted only under Sections 420 and 120 -B, Indian Penal Code. According to the learned single Judge, the Respondent, though the second wife of Balbir Singh, Petitioner, was an aggrieved person as contemplated under Section 198 of the Code, and therefore, complaint by her was quite competent. K.S. Tiwana, J., however, in another case, reported as Jarnail Singh v. Swaran Kaur, 1977 CLR 71 Pb. and Har took the view that second wife did not come under the category of aggrieved persons as contemplated under Section 198 of the Code. The learned Judge in the present case did not agree with the said view and hence the present reference. According to Section 198 of the Code, for any of the offences as contained in Chapter XX of the Indian Penal Code, which has a reference to Sections 493 to 498, complaint can be filed only by "some person aggrieved by the offence". The said provision so far as it is relevant, is reproduced below:

(3.) THE contention of the learned Counsel for the Petitioner is that the complainant Respondent being second wife did not come in the category of aggrieved person as envisaged under Section 198 of the Code. Reliance in support of this proposition has been placed on Jarnail Singh's case (supra) and in re. P. Kondiah and Anr. : AIR 1954 Mad 947.