Punjab-Haryana High Court
Balbir Singh vs Amarjit Kaur on 2 December, 1994
Equivalent citations: II(1995)DMC670
JUDGMENT N.K. Kapoor, J.
1. Petitioners seek quashing of complaint Annexure P-1 and the entire proceedings subsequent thereto including the summoning order Annexure P-2.
2. Briefly put, a criminal complaint under Sections 417, 418, 493, 495 and 120B read with Section 109 of the Indian Penal Code has been filed by Amarjit Kaur against the petitioners and after recording the preliminary evidence, petitioner No. 1 has been summoned by the Trial Magistrate under Section 495 I.P.C. and petitioner No. 2 under Section 495 read with Section 109 I.P.C. Magistrate, however, dismissed the complaint of the respondent against other accused. Petitioners seek quashing of the complaint on the ground that the same is vague and it does not disclose commission of offence under Sections 495 and 495/109 I.P.C. It has also been urged that complaint under Section 495 can be filed by the first wife only and not by the second wife. Since respondent-Amarjit Kaur is not a wife of petitioner No. 1, the present complaint is liable to be quashed. Even on facts, respondent has no case. According to petitioner No. 1 he is married to one Jaspal Kaur. In fact Jaspal Kaur filed a petition against the present petitioners and 11 others in which Amarjit Kaur was also impleaded as an accused person. Ultimately, the Judicial Magistrate vide order dated 28.11.1983 discharged the accused persons on the ground that Smt. Jaspal Kaur has failed to prove that Balbir Singh had entered into second marriage with Amarjit Kaur. Copy of judgment dated 28.11.1983 is Annexure P-3.
3. Pursuant to the notice of motion issued by the Court, reply has been filed on behalf of respondent-Amarjit Kaur. According to the respondent, she was married to petitioner No. 1 as is proved on the basis of statements of witness. It is also proved on record that Balbir Singh had married Jaspal Kaur, which fact was not disclosed to the answering respondent. Since the answering respondent has been duped she is an aggrieved person and can legitimately file the present complaint in terms of Section 495 I.P.C.
4. The primary submission of the learned Counsel for the petitioner is that even if it be a accepted that the respondent is the second wife of petitioner No. 1, she is not an aggrieved party in terms of Section 198 Cr.P.C. and so such a complaint by her under Section 495 I.P.C. was legally not maintainable. In support of this submission, reliance was placed upon the decisions in Ujjagar Singh & Ors. v. Harbhajan Singh & Anr., 1984(2) RCR 245 and Jarnail Singh v. Swaran Kaur, 1977 CLJ 71. In addition thereto, evidence as regards proof of second marriage is wholly lacking substance in the present case. The necessary ceremonies do not find mention in the complaint or in the statement of the complainant before the Court. Since the necessary ingredients have not been proved, the present complaint is liable to be quashed on this ground as well. Reliance was placed upon the decision of this Court in Raj Pal Singh v. Raj Dulari, 1990(2) RCR 104. Lastly Counsel submitted that the present complaint is liable to be quashed being a stale matter. According the Counsel as per version in the complaint the marriage took place sometime in the month of October, 1978 whereas the present complaint has been filed on 11.6.1990. In such like similar circumstances, the Court in Somkar Singh v. Smt. Bimla Devi, 1992(2) RCR 268, quashed the proceedings on account of this time gap.
5. Learned Counsel for the contesting respondent, however, has tried to justify the complaint, the summoning order and the proceedings pursuant, thereto, according to the learned Counsel for the respondent, respondent had no knowledge that petitioner No. 1 was married to another lady. In fact she has been duped, which fact came to light only when a complaint was filed under Section 198A Cr.P.C., such a complaint can be filed by a person aggrieved by the offence. The word 'person aggrieved' has not been defined. Section 494 I.P.C. punishes a person who during the subsistence of the first marriage contracts a second marriage. Section 495 I.P.C. deals with offences relating to the concealment of former marriage from persons to whom subsequent marriage is contracted. It specifically punishes the person who kept concealed the factum of first marriage and married subsequently.
6. Commenting upon the judgments cited by the learned Counsel for the petitioner in Jarnail Singh v. Swaran Knur, 1977 CLJ 71 and Ujjagar Singh & ORS. v. Harbhajan Singh and Anr., 1984(2) RCR 245, wherein it was held that second wife does not fall within the category of aggrieved person, Counsel urged that this view has been specifically overruled by the Division Bench in Balbir Singh v. Darshan Kumari, 1979 CC Cases 59, wherein it has been held that where second marriage is brought about by the husband or the wife of the first marriage, keeping the other spouse in absolute darkness of the first marriage, the second wife or the husband is not less aggrieved so far as the emotional and mental torture and reception of family is concerned. Such a person shall be deemed to be aggrieved person in terms of Section 198 Cr.P.C. Decision in Jarnail Singh's case (supra) was reversed.
7. With regard to second objection raised by the petitioners that appropriate ceremonies with regard to the marriage has not been proved is also wrong. Ample evidence has been led in this regard. Explaining the alleged delay highlighted by the Counsel for the petitioner, Counsel urged that the factum of first marriage of petitioner No. 1 came to light in proceedings initiated by the first wife against petitioner No. 1 under Section 494 I.P.C. Matter remained pending before the Court and it is thereafter that respondent has filed the present complaint. In any case, delay itself cannot be a ground for quashing the proceedings.
8. I have heard the learned Counsel for the parties. The plea of the learned Counsel for the petitioner for getting the complaint quashed is based on Section 198 Cr.P.C. and Section 495 I.P.C. Section 198A Cr.P.C. states that no Court shall take cognizance of an offence punishable under Chapter XX of the CR.P.C. (45 of 1860) except upon the complaint made by some person aggrieved by the offence. The expression 'person aggrieved' has not been defined under the Act. In common parlance, 'aggrieved person' is said to be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongly refused him something or wrongfully affected his title to something.
9. In Corpus Juris Secundum, Volume III, at page 351, the following statement appears with regard to aggrieved party or person :--
"It has been said that the expression is not a technical one and that the words are to be given their natural meaning, of one who has suffered an injury to person or property, one who is afflicted, oppressed, injured, vexed or harassed, or one to whom pain or sorrow is given. In legal acceptation, or in a legal sense, and when used with reference to legal remedies the words have been construed as having a sufficiently definite meaning which must be determined with reference to the context and subject matter. They may be and have been used as meaning or having reference to any one who is injured in a legal sense or who suffers from the aggressions of others.
The phrases 'party aggrieved' and 'person aggrieved' have been held equivalent, identical, or anonymous with 'adverse party'."
10. 'Aggrieved Person' thus has a number of meaning and the matter has to be decided in each case whether a person, who claims to file an appeal, is an 'aggrieved person' or not.
11. The decision in Jarnail Singh's case (supra) was doubted by Shri A.S. Bains, J., as he then was in Balbir Singh's cas (supra) in criminal Misc. No. 1686-M of 1978 and the matter was referred to the Division Bench. Division Bench comprising Justice Harbans Lal and Justice C.S. Tiwana after fully examining the statutory provisions and the judicial pronouncements came to the conclusion that the second wife or the husband not having prior knowledge of the first marriage will be positively an aggrieved person. In this view of the matter, the Court held that it would not be proper that such a person be deprived of filing a complaint against the guilty spouse under Section 198 of the Code.
12. Thus, in view of the Division Bench Judgment, the main contention of the learned Counsel for the petitioners falls to the ground. As regards the remaining two submissions with regard to the non-performance of ceremonies and it being a stale matter, these objections are also without any substance. The Magistrate on the basis of prima facie evidence has come to the conclusion that complainant married petitioner No. 1. As regards the delay, the same has been explained by the Counsel for the respondent. Accordingly, I am of the view that present petition is wholly devoid of merit and is accordingly dismissed. The Trial Court is, however, directed to proceed in the pending complaint expeditiously and decide the matter without any further delay preferably within one year.