Prayer :-Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to call for the records relating to order dated 01.04.2011 made in Crl.M.P.No.30 of 2011 in C.A.No.252 of 2007, on the file of the Additional Sessions Court / Fast Track Court-I, Erode and set-aside the same.
ORDER
1. The history of the case is as follows:-
The respondent herein had filed a case in C.C.No.29 of 2003, on the file of District Munsif-cum-Judicial Magistrate, Perundurai against 8 accused for the alleged offence under Section 494 r/w 109 I.P.C. All the accused were convicted after trial. Against the conviction and sentence passed in C.C.No.29 of 2003, dated 22.11.2007, the revision petitioner herein / A1 had filed a criminal appeal in C.A.No.252 of 2007, on the file of Additional Sessions Judge, Fast Track Court-I, Erode. While the appeal was pending, the revision petitioner herein had filed Crl.R.C.No.531 of 2008, before this Court to transfer the above appeal to some other Court. Subsequently, the above said revision in Crl.R.C.No.531 of 2008 was dismissed by this Court on 28.02.2010.
2. Thereafter, the revision petitioner herein had filed Crl.M.P.No.30 of 2011, to recall the evidence of P.W.1. for further cross-examination. The petitioner has stated that the respondent / wife had alleged that the petitioner had married one Sumathi on 25.12.2002, during the subsistence of the marriage with her, which was intimated to her sister's husband viz., one Natesan on 11.01.2003, who in turn intimated the said marriage to her on 11.01.2003. But, when she was examined as P.W.1., in C.C.No.426 of 2004, on the file of District Munsif-cum-Judicial Magistrate, she had deposed that on 30.12.2002, the petitioner herein contacted her over phone from Anthaman and intimated that he married one other lady on 25.12.2002. The said contradictions have to be elicited. For that purpose, P.W.1 has to be recalled and she should be subjected to further cross-examination. The petitioner has produced certified copies of depositions of P.W.1. and P.W.2 in C.C.No.426 of 2004, on the file of District Munsif-cum-Judicial Magistrate, Perunthurai. The said petition was filed under Section 391 of Cr.P.C., to adduce further oral and documentary evidence.
3. The respondent had filed counter statement and resisted the said petition. The respondent stated that the above petition has been filed with a view to prolong the matter. The appeal has been filed in the year 2007 and he had dragged on the proceedings for the past four years. At this stage the petitioner has no right to recall P.W.1. for cross-examination and marking four documents. Hence, the respondent has prayed for dismissal of the said case.
4. On hearing the arguments of both sides and after careful study of the averments of both parties, the learned appellate judge has held that the Court is not able to accept the said contentions of the petitioner. The learned judge observed that document No.1 produced by the petitioner shows that P.W.1 was examined in chief in C.C.No.426 of 2004, on 21.07.2005 itself. Thereafter, in C.C.No.29 of 2003, the P.W.1 was recalled and cross-examined by the present petitioner on 03.09.2007. At that time, the petitioner had not raised any questions with regard to the evidence let in by P.W.1 in C.C.No.426 of 2004. Admittedly, the present petitioner is one of the accused in C.C.No.426 of 2004. The evidence in that case would have been recorded only in his presence. So, he cannot say that only now he has come to know about the evidence let in by P.W.1 in C.C.No.426 of 2004. The learned judge further observed that at the appellate stage, the petitioner cannot adduce additional evidence as a matter of fact. Hence, the learned judge dismissed the petition.
5. Aggrieved by the dismissal of the said petition, the present revision has been preferred.
6. The learned counsel for the revision petitioner submitted that the P.W.1's evidence has not been recorded fully, as regards the conversation of the revision petitioner herein regarding the second marriage. It was submitted that this could be determined only after further examination of P.W.1. This is a vital point in the whole case. The learned counsel further submitted that the revision petitioner has not delayed the proceedings in the appeal. Lacuna has arisen in the trial Court's judgment. Therefore, the revision petitioner shall not be punished on the strength of incomplete evidence of P.W.1. If the petitioner is permitted to recall P.W.1. for cross-examination, no one would be prejudiced and the character of the criminal case would not be affected. Further, the evidence is not a created one. The respondent stated that the petitioner had talked over phone about the alleged marriage on 30.12.2002, whereas she has stated in her complaint that she came to know about the marriage only on 11.01.2003 through her sister's husband. As such, contradiction arises in the evidence of P.W.1. Hence, a clarification is necessary to ascertain the true facts after cross-examination of P.W.1.
7. The learned counsel for the respondent argued that the revision petitioner had filed one more Criminal Revision before this Court for transfer of the appeal. That was however dismissed. Subsequently, the petition was filed before the trial Court for additional evidence in order to drag on the proceedings. Already the main case had been decided by the trial Court on merits. At this stage, the revision is not maintainable under Section 391 of Cr.P.C. There is no lacuna in the trial Court's judgment. The revision petitioner cross-examined the P.W.1 in C.C.No.29 of 2003 on 03.09.2007. At that time, the revision petitioner had not raised any question regarding the conversation.
8. The learned counsel for the respondent had cited the following judgments in support of his case:-
(i) REEMA AGGARWAL v. ANUPAM reported in (2004) 3 SCC 199
"Penal Code, 1860 - Ss.498-A and 304-B - Applicability - Existence of valid marriage - Proof and necessity of - Expression "husband" - Meaning and scope of, in respect of said offences - Held, would cover a person who enters into marital relationship and under the colour of such proclaimed feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any purposes enumerated in Ss.304-B/498-A, whatever be the legitimacy of the marriage itself - Hence, husband contracting second marriage during subsistence of earlier marriage can be charged under Ss.304-B and 498-A - Heydon's rule pressed into service - Purpose construction and mischief rule applied - Words and Phrases - 'Husband'. "
(ii) A.T.BHAWAR v. STATE OF MAHARASTHRA reported in (1972) 1 SCC 800
"Family and Personal Law - Hindu Marriage Act, 1955 - Section 17 - Bigamy-Second marriage contracted during pendency of the proceedings-Accused living with the second wife and a son born - Birth register corroborating the evidence - High Court satisfied with birth and parentage of the child - Whether marriage valid.
Criminal Trial - Corroboration of evidence - Charge of bigamy - Son born out of second marriage - Entry in birth register by police patel in course of his official duty - Evidence of two witnesses present in second marriage ceremony - Whether evidence regarding second marriage fully corroborated.
Constitution of India - Article 133 - Interference - No error in reasoning of the conclusion of High Court shown - Whether Supreme Court should interfere.
Criminal Trial - Witness-evidence of witness not mentioned in complaint - Relevancy of such evidence arising only out of subsequent overt - Whether can be admitted"
(iii) NAGALINGAM v. SIVAGAMI reported in (2001) 7 SCC 487
" A. Penal Code, 1860 - S.494 -Bigamy - Second marriage performed without the ceremony of "Saptapadi" - Validity of, for the purposes of constituting offence under S.494 - Held, "Saptapadi" is an essential ceremony for a valid marriage only in cases where it is admitted by the parties entering into the marriage that it is an essential ritual to be performed for the marriage as per the personal law or form of marriage applicable to them - S.7-A of the Hindu Marriage Act, 1955 [as inserted by the Hindu Marriage (Tamil Nadu Amendment) Act, 1967] validates the marriage performed between the parties concerned by garlanding each other or putting a ring upon any finger of the other or tying a thali - So second marriage entered into by the appellant-accused with another woman 'K' (both resident of State of T.N.) under S.7-A of the Act, without ceremony of saptapadi, was a valid marriage so as to constitute an offence under S.494 I.P.C.-Hindu Marriage Act, 1955, Ss.7-A, 7 and 17 - Criminal Trial - Bigamy - Validity of second marriage performed without 'saptpadi' ceremony."
9. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels and on perusing the impugned order passed by the learned appellate judge, this Court does not find any discrepancy in the said order. Therefore, the revision is dismissed.
10. Resultantly, the above revision is dismissed. Consequently, the order passed in Crl.M.P.No.30 of 2011 in C.A.No.252 of 2007, on the file of the Additional Sessions Court, Fast Track Court-I, Erode, dated 01.04.2011 is confirmed. Consequently, connected miscellaneous petition is closed. Accordingly ordered.