Calcutta High Court (Appellete Side)

Jitendra Mohan Khan vs The State Of West Bengal & Anr on 14 July, 2022

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                         APPELLATE SIDE



Before: Hon'ble Justice Sugato Majumdar


                            CRR 2709 of 2011

                           Jitendra Mohan Khan

                                        Vs.

                      The State of West Bengal & Anr.


For the Petitioner                  :         Mr. Debabrata Acharyya,
                                              Mr. Sital Samanta,
                                              Mr. Debjani Saha.

For the State                       :         Mr. Binoy Panda,
                                              Mr. Pravas Bhattacharya,
                                              Ms. Subham Bhakat.



Hearing concluded on                :         07.07.2022

Judgment on                         :         14.07.2022


Sugato Majumdar, J.:-

    Instant application, filed under Section 401 of the Code of Criminal

Procedure, 1973 is directed against the judgment and order dated 11/08/2011

passed by the Sessions Judge, Dakshin Dinajpur in Criminal Appeal No. 7 of

2011 confirming the judgment and order of conviction and sentence passed on

21/02/2011

by the Additional Chief Judicial Magistrate, Gangarampur in CR

160 of 2010.

Fact of the case in nutshell is that on the basis of written complaint made

by the present Opposite Party No. 2 prosecution was launched against the

present Petitioner and Parul Khan. After completion of the investigation charge

sheet was filed. Charges were framed against the present Petitioner under Section 498A and 494 of the Indian Penal Code to which theypleaded not

guilty.

Defense of the present Petitioner is false implication. He stated in his

examination under section 313 of the Code of Criminal Procedure 1973 that he

did not marry the co-accused. Through cross examination defense also tried to

establish that the present Petitioner had already been prosecuted for the same

offence of bigamy and was acquitted.

The Trial Court held that the present Petitioner is guilty of the charges

under Section 498A and 494 of the Indian Penal Code. The Trial Court

acquitted the co-accused Parul Khan.

On appeal, the Sessions Judge upheld the judgment and order of

sentenced passed by the Additional Chief Judicial Magistrate, Buniyadpur in

terms of the impugned judgment dated 11/08/2011.

Being aggrieved by the judgment of the appellate court, the instant

Revision application is filed.

Mr. Acharyya, appearing for the Petitioner submitted that both the courts

below committed grave error in deciding the issue of limitation involved in the

case. Both the Courts below wrongly held that the offence under section 498A

is a continuous one giving a go by to the express provisions of section 468 of

the Code of Criminal Procedure, 1973. Mr. Acharyya further submitted that it

is in the evidence of PW 1, namely, the de-facto complainant that earlier a

criminal prosecution was initiated against the present Petitioner by the said

PW 1 which was numbered as MC/222/1978 alleging the second marriage of

the present Petitioner, where he was ultimately discharged. Therefore,

according to him, the second prosecution is barred under section 300 of the

Code. Both the Courts below committed grave error ignoring this aspect of the

matter. Mr. Acharyya further submitted that in order to bring a case under Section 494 of the Indian Penal Code there must be a valid marriage observing

all the formalities required by law. Saptapadi or seven steps before the sacred

fire is essential for a valid Hindu Marriage. Not a single piece of evidence is

adduced in support of performance of such essential ceremonies. Conclusion

arrived at by both the Courts below that the present Petitioner is guilty of

bigamy is grave error in appreciation of evidence. He relied upon the ratio of

Priya Bala Ghosh vs. Suresh Chandra Ghosh [1971 SCC (Cri.) 362] and

Santi Deb Berma versus Kanchan Prava Devi [1992 SCC (Cri.) 65].

Mr. Binoy Panda, appearing for the state, candidly admitted that

limitation prescribed under Section 468 of the Code of Criminal Procedure for

offence under Section 498A of the Indian Penal Code is three years. He also

admitted that there is no evidence to the extent that Saptapadi was observed by

the present Petitioner in the alleged second marriage. However, according to

him, there are enough evidence to suggest that there was the alleged second

marriage between the present Petitioner and Parul Khan.

Written complaint in this case is not exhibited. However, it is in the record

that prosecution was launched on the basis of a complaint case by the

Opposite Party No. 2 on 08/08/2000. It is the evidence of P.W. 1, namely, O.P.

No. 2 that she was married to the present Petitioner on 23rd Jaistha 1383 B.S.

as per Hindu Rites and Customs. After 2 to 3 years of marriageher husband,

namely, the present Petitioner began to torture her on the ground that she is

unable to bear any child.It is also in her evidence that the Petitioner drove her

out from the matrimonial home 7/8 years after the marriage. Because of his

torture she voluntarily left her matrimonial home and began to reside in her

paternal home 12 to 14 years prior to the date of the deposition.

Both the Courts below concurrently held that limitation prescribed by

section 468 of the Code does not apply to this case as the offence under section

498A of the Indian Penal Code is a continuous one and that Court can condone delay in the interest of justice the Appellate Court also upheld supported that

finding. It is evident that both the Courts below failed to apply the correct

principle of in deciding the issue of limitation.

P.W. 1 being de-facto complainant stated in her evidence that after she

began to live in her parental home, she visited several times to her matrimonial

home when she was ill treated. It is in her evidence that she had been living

in her parental home for last 14 to 15 years from the date of deposition. The

statement is rather vague for it fails to mention not only approximate date or

period of time but also any length of time when such things occurred. There is

nothing in evidence of P.W. 1 that she was recently or within a period of three

years treated cruelly by the present Petitioner. Such vague statements cannot

be neither be basis of conviction nor ought to lead to a conclusion that they are

occurred a continuing offence. Both the Courts below failed to appreciate

evidence in terms of true purport and meaning of section 498A of the Indian

Penal Code.

The Petitioner was also convicted of offence under Section 494 of the

Indian Penal Code on the charge of bigamy.

It is no longer res integra that one of the ingredients of Section 494 of the

Indian Penal Code is that the second marriage must be a void one. In Priya

Bala Ghosh Vs. Suresh Chandra Ghosh [(1971)1 SCC 864] referring to

Section 17 of the Hindu Marriage Act, the Supreme Court of India observed

that a marriage in order to be void as contemplated in Section 494 of the

Indian Penal Code must be a valid one. It was observed that if the alleged

second marriage is not a valid one according to law applicable to the parties, it

will not be void by reason of its taking place during the life of the husband or

the wife of the person marrying so as to attract Section 494 IPC. Again in order

to hold that the second marriage has been solemnized so as to attract Section

17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. It was further held that

the prosecution has to prove that the alleged second marriage held been duly

performed in accordance with the essential religious rites applicable to the form

of the marriage gone through by the parties and that the said marriage must be

a valid one according to law applicable to the parties.

P.W. 1 was not present when the alleged second marriage took place. P.W.

2 heard that the present Petitioner married again and his evidence in this

regard is a hearsay one. P.W. 3 who was present in the alleged second

marriage, stated that the present Petitioner married Parul Basak by exchange

of garland and gift of sindoor to her. Except exchange of garland and sindoor

nothing else took place there. P.W. 4 heard of the marriage and was not an

eyewitness. No other evidence came forward to show that essential ceremonies

including homaor saptapadi were performed. The statements of P.W. 3 clearly

indicate that saptapadi (seven steps) of statutory rituals were performed both

the Trial Court and the Appellate Court committed grave error not only in

application of law but also in appreciation of evidence in convicting the

accused under Section 494 of the Indian Penal Code.

Neither of the courts took into consideration the evidence of P.W. 1 and

P.W.4 that the present Petitioner was earlier prosecuted under section 494 of

the Indian Penal Code. P.W. 1 in her cross-examination candidly admitted that

a complaint case was filed against the present petitioner on the charge of

bigamy under Section 494 of the Indian Penal Code which was registered as

Case No. 222 of 1978 before the Chief Judicial Magistrate, Balurghat. She

further stated "said case was ultimately discharged." It is in the evidence of

P.W.4 that earlier prosecution was launched against the present Petitioner

under section 498A of the Indian Penal Code in which he deposed as a witness

and in that case the present Petitioner was discharged. Both the courts below failed to take into consideration of these statements of the witnesses and

provisions of section 300 of the Code of Criminal Procedure.

It is settled principle of law that in case of concurrent finds of both the

courts below, High Court should be slow to interfere into unless there are very

strong reasons to do so. In the case in hand both the Courts below committed

serious errors in application of law as well as in appreciation of evidence

causing miscarriage of justice. Therefore, this Courtis constrained to interfere

into the order of conviction passed by the Trial Court and upheld by the

Appellate Court.

In nutshell, an instant revision application is allowed. The Judgment and

Order of conviction and sentence passed on 21.02.2011 by the Additional Chief

Judicial Magistrate, Gangarampur in CR 160 of 2010 is hereby set aside. The

present Petitioner is set at liberty and is also released from the bail bond.