2003 ALL MR (Cri) 1279
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

N.V. DABHOLKAR, J.

Kusum Dadarao Khandagale Vs. Dadarao Bajirao Khandagale & Ors.

Criminal Revision Application No.453 of 1999

12th August, 2002

Petitioner Counsel: Shri. P.P. KULKARNI, Shri. R.M. BORDE
Respondent Counsel: Shri. P.F. PATANI, Shri. V.D. SAPKAL

Criminal P.C. (1973), Ss.244 to 250, 256, 258, 300 - Double jeopardy - Private complaint - Dismissal of complaint under, S.249 due to absence of complainant - Fresh complaint on same facts - Can be entertained - However, complaint if dismissed under S.256 it amounts to acquittal of accused and hence fresh Complaint on same facts is barred under S.300.

On reference to Section 249, it is evident that in the matters of proceedings instituted by the complaints, on any date fixed for hearing of the case, the Magistrate may discharge accused, provided the stage of framing of charge is not surpassed. Such power to discharge accused may not be available to Magistrate once the charge is framed against accused and plea is recorded and the Magistrate would be required to take the case to its logical and legal conclusion. However, even this decision (discharge), before framing of charge, can occur in two circumstances; firstly, before even a single witness is examined by the complainant under Section 244, and secondly, after some witnesses are examined and complainant is thereafter absent before examining the remaining witnesses desired to be examined during the course of evidence before charge.

On reference to Section 258, which is pertaining to procedure for trial of summons cases, it is evident that if the Magistrate stops proceedings at any stage, without pronouncing any judgment, such stoppage amounts to acquittal, if the same has come after the evidence of principal witnesses has been recorded. Such stoppage acts only as discharge of accused, in case it has come otherwise, i.e. before examination of principal witnesses.

No doubt in Section 256 of the Code pertaining to trial of summons cases, the Magistrate has powers to declare acquittal of accused for non appearance of complainant and there are no conditions as in Section 249 of the Code that the case may be lawfully compoundable or pertaining to non-cognizible offence.

On this aspect, a reference may usefully be made to Section 300 of the Code, which embodies principle of autrefois convict/acquit within it. Once a person was tried by the court of competent jurisdiction for an offence and either convicted or acquitted of such offence, while such conviction or acquittal remains in force, cannot be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him, could have been made under sub-section (1) of Section 221 of the Code, or for which he might have been convicted under Section 221(2) of the Code.

By virtue of Section 300(5) of Cr.P.C. in the matter of stoppage of proceedings of a summons case under Section 258 of Cr.P.C., which is stoppage without pronouncing any judgment, accused so discharged can be tried again for the same offence, only with the consent of the Court by which accused was discharged while closing the proceeding. Obviously, the Court will have to consider, if proceeding is closed after recording evidence of principal witnesses or otherwise. In the first case, since such closure amounts to acquittal, the Court would be required to refuse the consent, in the latter case it would be in a position to consent to retrial of accused.

Section 300 of Cr.P.C. does not refer either to Section 249 or 256 of the Code, as it does about Section 258. This is because upon disposal of the case under those provisions, there is no dilemma if the decision amounts to acquittal of accused or only discharge. It is acquittal in case of dismissal of complaint under Section 256 of the Code.

It is pertinent to note that result of Section 249 of the Code is discharge of accused and not acquittal. Explanation to Section 300 of the Code makes the picture crystal clear, which reads:

"Explanation :- The dismissal of complaint, or discharge of the accused, is not an acquittal for the purpose of this section."

The explanation under Section 300 should be sufficient to uphold the contention of Advocate Shri. Kulkarni that second complaint on the same facts and circumstances can be filed and entertained, in the matters wherein the earlier complaint is dismissed under Section 249 of the Code, due to absence of complainant. AIR 1979 SC 848 and AIR 1966 SC 614 - Referred to. [Para 7,8]

Cases Cited:
Purushottam Vs. Jugalkishor, 2000 ALL MR (Cri) 1589 [Para 6]
Pramatha Nath Taluqdar Vs. Saroj Ranjan, AIR 1962 SC 876 [Para 6]
Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh, AIR 1971 SC 1153 [Para 10]
Bhaurao Shankar Lokhande Vs. State of Maharashtra, AIR 1965 SC 1564 [Para 10]
Kanwal Ram Vs. The Himachal Pradesh Admn., AIR 1966 SC 614 [Para 10]
Lingari Obulamma Vs. L. Venkata Reddy, AIR 1979 SC 848 [Para 10]


JUDGMENT

JUDGMENT :- Heard respective Counsel.

Rule

By consent, Rule is made returnable forthwith.

2. Present revision is filed by original complainant, challenging the judgment and order dated 9.9.1999, delivered by the learned Additional Sessions Judge, Aurangabad in Criminal Revision No.34 of 1999. The learned Sessions Judge was pleased to allow the revision filed by four, out of eight accused, i.e. original accused Nos.1,3,5 and 6, against the order passed by learned Judicial Magistrate First Class, Sillod, in Regular Criminal Case No.9 of 1997, on 24.2.1999, arriving at a decision that charge under Section 494 of Indian Penal Code, against accused No.1 and under Section 494 read with Section 109 of Indian Penal Code as against accused Nos.2 to 8 was required to be framed.

3. It appears that, complainant filed a prosecution against eight accused persons for the offences punishable under Sections 494 read with 109 of Indian Penal Code, which was registered as Regular Criminal Case No.142/1988. However, that Criminal Case ended in discharge of accused on 12.4.1990 under Section 249 of the Criminal Procedure Code, due to absence of complainant on that day. Consequently, complainant filed Regular Criminal Case No.55 of 1990 in the Court of Judicial Magistrate (First Class), Sillod on 17.4.1990. After recording verification of the complainant, the learned Magistrate was pleased to issue process against all accused persons. Subsequently, after transfer of the criminal case to the Joint Judicial Magistrate (F.C.), it was renumbered as Regular Criminal Case No.9 of 1997. After considering the evidence before charge, led by complainant under Section 244 of Criminal Procedure Code, the learned Magistrate was pleased to arrive at a conclusion that charge needs to be framed against all accused, by order dated 24.2.1999, as stated above, which order was challenged by four accused Nos.1,3,5 and 6 successfully in Criminal Revision No.34 of 1999 before the learned Additional Sessions Judge, Aurangabad.

4. In fact, only four accused persons had challenged the order regarding framing of charge against all accused persons and therefore, only these four accused persons, Sr. Nos.1,3,5 and 6 are cited as respondents Nos.1 to 4 in the present revision. Shri. Kulkarni, Advocate, before opening his arguments, contended that since the learned Sessions Judge has said that, "....the order in revision is hereby quashed and set aside, and the petitioners/accused are hereby discharged of the offences under Sections 494, 109 of Indian Penal Code", only accused Nos.1,3,5 and 6 who were petitioners before the Sessions Judge stand discharged and trial continues as against the original accused Nos.2,4,7 and 8.

Here itself, it must be stated that accused No.1 is husband of complaint. Accused No.2 is alleged second wife. Accused Nos.3 and 4 are parents of accused No.1. Accused Nos.7 and 8 are parents of accused No.2. Accused No.6 is brother of accused No.1 and accused No.5 is said to be uncle of accused No.1 and alleged to have acted as priest and having presided over the solemnization of marriage, between accused Nos.1 and 2.

Even if we have to accept the argument of Shri. Kulkarni that by the impugned order, the Sessions Judge has discharged only accused Nos.1,3,5 and 6, still Advocate Shri. Patani would be justified in saying that by that the case as a whole would die its death. This is obviously because, if accused No.1 is acquitted of the charge of bigamous marriage, naturally accused Nos.2 to 8, who are impleaded as abettors cannot be convicted, once complainant is estopped from proving the bigamous marriage, as a result of discharge of accused No.1 Husband. Present revision is, therefore, heard on the assumption that the effect of impugned order of Sessions Judge is discharged of all eight accused persons, by earlier part of the wording in the order as quoted hereinabove, i.e. "...the order under revision is hereby quashed and set aside."

5. It appears that the learned Magistrate was satisfied of prima facie case, on the basis of evidence of only two witnesses examined by the complainant under Section 244 of the Code i.e. complainant herself and her father Bhaurao. As can be seen from the order of the Magistrate, complainant deposed to have visited the house of accused No.1, to have seen accused No.2 present in the house and according to her, accused Nos.1 and 2 discloses to her that they had solemnized their marriage. Complainant's father Bhaurao rendered corroboration to her deposition by stating that complainant had been to the place of accused No.1 and she had heard both husband and alleged second wife, having admitted solemnization of their marriage. Apart from this oral evidence, letter purportedly written by husband to the complaint dated 17.7.1988 appears to have been produced before the trial Court, which was also relied upon by the learned Magistrate. He consequently arrived at a conclusion that this was not a case, wherein it could be said that, "No case against accused has been made out, which, if un-rebutted, would warrant their conviction." Thus, according to learned Magistrate, the evidence led before charge was sufficient to warrant conviction of accused persons, if that was not subsequently rebutted.

Learned Sessions Judge, upheld both the contentions of petitioners / accused persons, that earlier complaint having been dismissed under Section 249 of the Code, fresh complaint cannot be entertained and that whatever evidence was led by the prosecutrix was hearsay, inadmissible and therefore, incapable of establishing any guilt on the part of accused.

6. Shri. Kulkarni, Advocate for petitioner has placed reliance upon the observations of this High Court, in the matter reported at 2000 ALL MR (Cri) 1589 (Purshottam Vs. Jugalkishor). The learned Single Judge, relying upon the guidelines laid down by the apex Court in AIR 1962 SC 876 (Pramatha Nath Taluqdar Vs. Saroj Ranjan), held that when a complaint is dismissed for default, under Section 249 of the Code and accused is discharged, second complaint is not barred under the same set of facts. Advocate Shri. Patani, for respondent, has relied upon the observations of the apex Court in the matter of Taluqdar (supra) and contended that after dismissal of complaint under Section 249, none of the guidelines laid down by the Supreme Court can be attracted and therefore, the second complaint on the same set of facts and circumstances is not maintainable.

As can be seen from paragraph No.7 of the judgment, the learned Single Judge of this Court, (Sic) the Supreme Court has observed that entertaining of second complaint, when first complaint is dismissed is not barred, though this has to be done only in exceptional circumstances, for example, where the previous order was passed on incomplete record OR misunderstanding of the nature of the complaint OR it was manifestly absurd, unjust or foolish OR where new documents which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. The Supreme Court also held that the second complaint on the same set of facts should not be entertained when the decision has been given against complainant upon full consideration of his case and that in such a case, complainant should not be given another opportunity to have his complaint enquired into.

7. Although Advocate Shri. Patani urged that a complaint dismissed under Section 249 of the Code does not fall into any of the categories, it is not possible to agree with the submission. In a case for bigamy punishable with imprisonment upto 7 years, instituted on the basis of complaint (and not upon police report) the procedure prescribed for trial of warrant cases as prescribed in Sections 244 to 250 of the Code is required to be followed. On reference to Section 249, it is evident that in the matters of proceedings instituted by the complaints, on any date fixed for hearing of the case, the Magistrate may discharge accused, provided the stage of framing of charge is not surpassed. Such power to discharge accused may not be available to Magistrate once the charge is framed against accused and plea is recorded and the Magistrate would be required to take the case to its logical and legal conclusion. However, even this decision (discharge), before framing of charge, can occur in two circumstances; firstly, before even a single witness is examined by the complainant under Section 244, and secondly, after some witnesses are examined and complainant is thereafter absent before examining the remaining witnesses desired to be examined during the course of evidence before charge.

8. On reference to Section 258, which is pertaining to procedure for trial of summons cases, it is evident that if the Magistrate stops proceedings at any stage, without pronouncing any judgment, such stoppage amounts to acquittal, if the same has come after the evidence of principal witnesses has been recorded. Such stoppage acts only as discharge of accused, in case it has come otherwise, i.e. before examination of principal witnesses.

No doubt in Section 256 of the Code pertaining to trial of summons cases, the Magistrate has powers to declare acquittal of accused for non appearance of complainant and there are no conditions as in Section 249 of the Code that the case may be lawfully compoundable or pertaining to non-cognizible offence.

On this aspect, a reference may usefully be made to Section 300 of the Code, which embodies principle of autrefois convict/acquit within it. Once a person was tried by the court of competent jurisdiction for an offence and either convicted or acquitted of such offence, while such conviction or acquittal remains in force, cannot be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him, could have been made under sub-section (1) of Section 221 of the Code, or for which he might have been convicted under Section 221(2) of the Code.

By virtue of Section 300(5) of Cr.P.C. in the matter of stoppage of proceedings of a summons case under Section 258 of Cr.P.C., which is stoppage without pronouncing any judgment, accused so discharged can be tried again for the same offence, only with the consent of the Court by which accused was discharged while closing the proceeding. Obviously, the Court will have to consider, if proceeding is closed after recording evidence of principal witnesses or otherwise. In the first case, since such closure amounts to acquittal, the Court would be required to refuse the consent, in the latter case it would be in a position to consent to retrial of accused.

Section 300 of Cr.P.C. does not refer either to Section 249 or 256 of the Code, as it does about Section 258. This is because upon disposal of the case under those provisions, there is no dilemma if the decision amounts to acquittal of accused or only discharge. It is acquittal in case of dismissal of complaint under Section 256 of the Code.

It is pertinent to note that result of Section 249 of the Code is discharge of accused and not acquittal. Explanation to Section 300 of the Code makes the picture crystal clear, which reads:

"Explanation :- The dismissal of complaint, or discharge of the accused, is not an acquittal for the purpose of this section."

The explanation under Section 300 should be sufficient to uphold the contention of Advocate Shri. Kulkarni that second complaint on the same facts and circumstances can be filed and entertained, in the matters wherein the earlier complaint is dismissed under Section 249 of the Code, due to absence of complainant.

Even considering the guidelines prescribed by the apex Court, in the matter of Taluqdar, complaint dismissed for the absence of complainant, without recording any evidence before charge, can be placed at par with the first guideline i.e. the order passed on an incomplete record.

In any case, disposal of Criminal Case under Section 249 of the Code being discharge of the accused and not acquittal, in view of explanation to Section 300 of the Code, it must be said that the second complaint can be filed and entertained.

9. Section 245 of the Code, within its text has the parameters as to when the accused may be discharged and the standard required is:

"That no case against the accused has been made out which, if unrebutted would warrant his conviction."

According to Shri. Kulkarni, Advocate, in view of evidence of complainant, that she had been to the place of accused No.1, she met accused Nos.1 and 2 there and they admitted to have solemnized the marriage, the evidence unrebutted is sufficient to warrant conviction and therefore, this was not a case for discharge of the accused persons.

10. This being a case of bigamy, Advocate Shri. Patani has placed reliance upon couple of judgments of the Supreme Court, in order to support his arguments that in the matter of bigamy, the complainant must plead and prove as to what are the religious rites or customs observed by his community for valid solemnisation of the marriage and in the absence of it, even the admission by accused persons that they have performed the marriage, will not be sufficient to warrant conviction. According to Shri. Patani, the admission by accused Nos.1 and 2 as deposed to by the complainant, even if taken as unrebutted, therefore, are not sufficient to warrant the conviction. The Sessions Judge, therefore, was fully justified in discharging all accused persons.

In AIR 1971 SC 1153 (Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh), by relying upon its observations in earlier judicial pronouncement reported in AIR 1965 SC 1564 (Bhaurao Shankar Lokhande Vs. State of Maharashtra), the apex Court observed;

" ..... The effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties."

Further relying upon the observations in its earlier pronouncement reported at AIR 1966 SC 614 (Kanwal Ram Vs. The Himachal Pradesh Admn.), the Supreme Court observed thus regarding admission of second marriage by accused:

" .... it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it must be proved....it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case....."

In the case reported in AIR 1979 SC 848 (Lingari Obulamma Vs. L. Venkata Reddy), the Supreme Court observed:

".....Moreover, as the existence of the custom was neither mentioned in the complaint nor proved in the evidence, it would be difficult for this Court to rely on the decision of the High Court which was based on the evidence, facts and circumstances of the case before it."

Consequently, findings of the High Court that the prosecution has failed to prove that the second marriage contracted by respondent No.1 with respondent No.4, was a valid marriage and therefore, acquittal of the respondent was upheld.

11. In the light of ratio laid down by the Supreme Court as above, the prosecutrix in her evidence before charge, did not lead any other evidence except her deposition and deposition of her father and a letter written by the husband apologizing for having married with the respondent No.2. All three pieces of evidence are pertaining to admission by accused, which are not admissible pieces of evidence in the matter of bigamy. It is submitted by Advocate Shri. Patani that although the list of witnesses cited below the complaint indicates other witnesses, probably the witnesses allegedly having attended the second marriage, none of them were examined. Shri. Patani has also taken me through the copy of the complaint as also the version of the prosecutrix before the trial Court. Although version cryptically says, uDecèÈe k[rn Eece_l Dmnsns hEolrvgmej cePf mxclr ËÑebeÈ n¼v ksnsns De|s.¿, neither the religious rites nor the customs prevalent in the case of prosecutrix, for valid solemnization of the marriage are indicated in the complaint, nor it is the claim of prosecutrix, founded on evidence of eye witness examined before charge; that all those religious rites and customs were observed during solemnization of alleged second marriage of accused No.1 with accused No.2.

12. It must therefore, be said that even taking into consideration all the evidence led before charge, the same does not make out a case, which if unrebutted would end in conviction of accused persons for the offences punishable under Sections 494 and 494 read with 109 of Indian Penal Code. The learned Sessions Judge was, therefore, justified in quashing and setting aside the order of Judicial Magistrate (First Class) directing framing of charge and order of learned Sessions Judge calls for no interference.

The revision petition is, therefore, dismissed. Rule discharged.

Petition dismissed.