Smt. Asha Vs. Prem Shanker

Smt. Asha vs Prem Shanker

Disposition Petition dismissed Court Rajasthan Decided Feb 07, 1991

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Citation: sooperkanoon.com/761810
Court: Rajasthan High Court
Judge: B.R. Arora, J.
Decided On: Feb 07, 1991
Case Number: S.B. Criminal Miscellaneous Petition No. 238 of 1988
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

Penal Code - Section 494 and Criminal Procedure Code--Section 198(1)(c)--Complaint by--Specific provision Under Section 198(1)(c)--Held, father of first wife can file Complaint.;In view of this specific provision of Section 198(1)(c) Cr.P.C. the first contention raised by the learned Counsel for the petitioner has g...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed

Parties & Advocates

Appellant / Petitioner

Smt. Asha

Respondent

Prem Shanker

Legal References

Reported In: 1991WLN(UC)65

Excerpt

penal code - section 494 and criminal procedure code--section 198(1)(c)--complaint by--specific provision under section 198(1)(c)--held, father of first wife can file complaint.;in view of this specific provision of section 198(1)(c) cr.p.c. the first contention raised by the learned counsel for the petitioner has got no force.;(b) penal code - section 494 and criminal procedure code--cognizance--court to see whether prima facie case is made out at time of taking cognizance.;at the time of taking the cognizance, the court has only to see that whether from the evidence of the witnesses and the documents on record, any prima facie case to proceed-with against the accused is made-out.;(c) penal code - section 494 and criminal procedure code--section 482--exparte order passed without giving opportunity to accused--held, petitioner can raise objections before lower court.;as the order, taking the cognizance is an exparte order, passed by the learned court below, without giving any opportunity of hearing to the accused, therefore, if the accused has any grievance against the order passed by the learned court below then she can agitate her grievance and raise objections before the learned lower court and the learned lower court will consider all those objections raised by the accused.;petition dismissed. - .....by the learned lower court taking cognizance against the petitioner.5. i have considered the rival commissions made by the learned counsel for the parties.6. section 198 cr.p.c. deals with the prosecution for the offences against the marriage. sub-section (1)(c) of section 198 cr.p.c. provides that where the person aggrieved by an offence punishable under section 494 or 495 i.p.c. is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the court, by any other person related to her by blood, marriage or adoption. the contention raised by the learned counsel for the petitioner is, that, contrary to the provisions of the code of criminal procedure. as per section 198(1)(c) cr.p.c. the father of the first wife can file a complaint to the case. in view of this specific provision of section 198(1)(c) cr.p.c. the first contention raise by the learned counsel for the petitioner has got no force.7. regarding the second contention that there is no evidence on record, on the basis of which the cognizance can be taken, suffice it to say that at the time of taking the cognizance, the court has only to see that whether from the evidence of the witnesses and the documents on record, any prima facie, case to proceed-with against the accused is made-out. if there is a prima facie evidence to proceed-with against the accused then the court can take cognizance. if the accused, against whom the cognizance has been taken, has any valid defence available to him/her, then that can be decided by the trial court at the appropriate stage. as the order, taking the cognizance is an exparte order, passed by the learned court below, without giving any opportunity of hearing to the accused, therefore, if the accused has any grievance against the order passed by the learned court below then she can agitate her grievance and raise objections before the learned lower court and.....

Full Judgment

B.R. Arora, J.

1. This miscellaneous petition is directed against the order dated June 9, 1988, passed by the learned Sessions Judge, Udaipur, by which the learned Sessions Judge dismissed the revision petition filed by the petitioner.

2. Prem Shanker - father of Smt. Hemlata alias Anita, filed a complaint under Section 494 I.P.C. against Smt. Asha and twenty-five other persons in the Court of the Judicial Magistrate, Kherwara. It was allege to the Complaint that his daughter Anita was married to Devi Lal as per Hindu rites on May 15, 1981 at Rishabdev and after her marriage, she remained with her husband. Devi Lal turned her out from his house in October, 1983 and thereafter, on April 19, 1981, he has contracted second marriage with Asha in village Kodan tehsil Gaddi. As Devi Lal has contracted second marriage though his first wife is alive and the first marriage is in existence, he has committed an offence under Section 494 I.P.C. The allegation against the other accused is with respect to helping Devi Lal accused for contracting the second marriage. After the submission of this complaint, the learned Magistrate examined Prem Shanker, Shivram, Jaggannath, Madan Lal and Smt. Anita under Section 202 Cr.P.C. and thereafter after considering the complaint and the statements recorded by him under Section 202 Cr.P.C. the learned Magistrate, by his order dated June 5, 1985, took cognizance against Smt. Asha and Devi Lal under Section 494 I.P.C. Dissatisfied with the order dated June 5, 1985 taking cogizance against her, Smt. Asha filed a revision petition before the learned Sessions Judge, Udaipur, who, by his order dated June 9, 1988, dismissed the revision-petition filed by the petitioner.

3. Heard learned Counsel for the petitioner and the learned Public Prosecutor.

4. It is contended by the learned Counsel for the petitioner that the complaint in this case has been filed by the father of Smt. Anita and not by Smt. Anita herself and as such this petition is not maintainable. In support of his case, he has placed reliance over : 86(1984) Punjab Lae Reporter 70. His next argument is that there is no evidence on record, on the basis of which the cognizance could have been taken against the petitioner. He has also, submitted that there is no evidence on record which shows that Smt. Asha had any knowledge with respect to the first marriage of Devi Lal. He, therefore, prayed that the order, taking cognizance against the petitioner may be set-aside and the proceedings initiated against her may be quashed. The learned Public Prosecutor, on other hand, has supported the order passed by the learned lower Court taking cognizance against the petitioner.

5. I have considered the rival commissions made by the learned Counsel for the parties.

6. Section 198 Cr.P.C. deals with the prosecution for the offences against the marriage. Sub-section (1)(c) of Section 198 Cr.P.C. provides that where the person aggrieved by an offence punishable under Section 494 or 495 I.P.C. is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the Court, by any other person related to her by blood, marriage or adoption. The contention raised by the learned Counsel for the petitioner is, that, contrary to the provisions of the Code of Criminal Procedure. As per Section 198(1)(c) Cr.P.C. the father of the first wife can file a complaint to the case. In view of this specific provision of Section 198(1)(c) Cr.P.C. the first contention raise by the learned Counsel for the petitioner has got no force.

7. Regarding the second contention that there is no evidence on record, on the basis of which the cognizance can be taken, suffice it to say that at the time of taking the cognizance, the Court has only to see that whether from the evidence of the witnesses and the documents on record, any prima facie, case to proceed-with against the accused is made-out. If there is a prima facie evidence to proceed-with against the accused then the Court can take cognizance. If the accused, against whom the cognizance has been taken, has any valid defence available to him/her, then that can be decided by the trial Court at the appropriate stage. As the order, taking the cognizance is an exparte order, passed by the learned court below, without giving any opportunity of hearing to the accused, therefore, if the accused has any grievance against the order passed by the learned Court below then she can agitate her grievance and raise objections before the learned lower Court and the learned lower Court will consider all those objections raised by the accused. If after hearing the arguments, the Court is of the opinion that no case is made-out then it may discharge the accused-petitioner. But the cognizance taken by the learned lower Court cannot be interfered with or quashed by this Court under its inherent powers at this stage.

8. Consequently, this miscellaneous petition, filed by the petitioner, has no force and is hereby dismissed.

Same Court & Year Rajasthan · 1991 Same Parties Smt. Asha vs Prem Shanker Same Subject Criminal Same Judge B.R. Arora, J.

Criminal