IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Mr. JUSTICE B.A. PATIL Crl.R.P. No. 1415/2018 BETWEEN :
Sri. J. Keshavamurthy S/o. Javaregowda Aged about 43 years No. 68, 4th Cross Vasthu Layout Kudlu Village Madivala Post Sarjapura Hobli Anekal taluk Bangalore – 560 068. … PETITIONER (By Sri. Vinayaka S. Koti, Adv., for Sri. Shivashankar, Adv.) AND :
Smt. G.C. Deepa Aged about 37 years R/a. No. 1340 9th Block, 2nd stage Nagarabhavi Bangalore – 560 072. … RESPONDENT (By Sri. M. Abdul Rahiman, Adv.) ---
This Criminal Revision Petition is filed under Section 397 read with Section 401 Cr.P.C. with a prayer to set aside the judgment/order dated 27.10.2018 passed by LXV Additional City Civil and Sessions Judge, Bangalore in Crl.A. No. 454/2015 and etc.
This Criminal Revision Petition coming on for Orders this day, the court passed the following;
O R D E R Present revision petition has been filed by the petitioner/husband being aggrieved by the order passed by the LXV Additional City Civil and Sessions Judge, Bangalore in Crl.A. No. 454/2015 dated 27.10.2018 where under the order passed by the Court below in PCR No. 736/2013 dated 07.02.2015 was set aside and the matter was remitted back to the trial Court.
2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. Brief facts of the case are as under:
Respondent – wife filed a complaint alleging that her marriage was solemnized with the petitioner – husband on 24.11.2004 and out of the wed lock she gave birth to a male child and thereafter they went to Hyderabad and after one year they came back and started living together. It is further alleged that the petitioner – husband expressed willingness to have a separate house. Father of respondent – wife purchased a site in her name and constructed a house. Subsequently the petitioner – husband purchased a house. Since the petitioner – husband went to South Africa on official duty, he executed a General Power of Attorney in favour of the respondent - wife. It is further alleged that apart from the house property he also purchased some other properties. Thereafter the attitude of the petitioner – husband was changed and he started neglecting the respondent - wife and suspecting her fidelity. Subsequently she came to know that the petitioner - husband had married another lady and out of the said marriage he had given birth to a child and as such she filed a complaint alleging that it amounts to bigamy punishable under Section 494 IPC.
4. The Court below after considering the complaint, by order dated 07.02.2015 came to the conclusion that by acting under Section 203 Cr.P.C. there is no sufficient ground to proceed against the accused under Section 494 IPC and the complaint came to be dismissed. Challenging the same the respondent - wife preferred an appeal in Crl.A. 454/2015 and the same was allowed by order dated 27.10.2018. The petitioner – husband has challenged the same on various grounds in this revision petition.
5. It is submitted by the learned counsel for the petitioner that the impugned order is perverse, illegal and unsustainable in law. He further submitted that against the order of dismissal of the complaint no appeal lies under Section 374 Cr.P.C. If at all the complainant is aggrieved by the said order then she ought to have preferred a revision petition and not an appeal. He also submitted that the first Appellate Court without considering the said fact has given a wrong conclusion. He further submitted that the order passed by the first Appellate Court directing both the parties to lead evidence is also illegal and when there is no material as against the petitioner – husband and when the trial Court has dismissed the complaint, then under such circumstances, the first Appellate Court ought not to have directed the petitioner – husband to appear before the Court until cognizance is taken. On all these grounds, the learned counsel for the petitioner – husband prayed to allow the petition and set aside the impugned order.
6. Per contra, learned counsel appearing on behalf of the respondent – wife submitted that at the time of filing the complaint only one document was available and as such the complaint was dismissed and therefore, she has preferred an appeal before the first Appellate Court. During the pendency of the appeal some more documents have been produced and after considering the said material, the first Appellate Court has remanded the matter by giving a fresh opportunity to the complainant. Though no appeal lies, it is only an irregularity and not an illegality. He further submitted that an opportunity should be given to the complainant to prove her case and if no opportunity is given, then the complainant would be put to greater hardship. On these grounds he prayed to dismiss the petition as the same is devoid of merits.
7. I have carefully and cautiously gone through the submissions of the learned counsel for the parties and perused the records.
8. It is the contention of the learned counsel for the petitioner – husband that against the order of dismissal of complaint, a revision lies and no appeal lies under Section 374 Cr.P.C. I feel that there is some force in the argument advanced by the learned counsel for the petitioner - husband. It is also acceptable that when once the Court is not having any jurisdiction to entertain an appeal, if it entertains the appeal and passes an order, then that order itself is a nullity in the eye of law and as such the said order is unsustainable in law.
9. Be that as it may. If the contention of the learned counsel for the petitioner – husband is accepted and if the respondent – wife is directed to file a revision petition against the order of the trial Court in PCR No. 736/2013 dated 07.02.2015, again it will be a futile exercise and it also consumes lot of time. In order to avoid such exercise and in order to provide an opportunity to the respondent – wife, I feel that by setting aside the impugned order passed by the first Appellate Court if the matter is remitted back to the trial Court to produce all the documents as contended by the learned counsel for the respondent – wife and to establish that there is prima facie material to take cognizance, it would serve the purpose and thereafter, the trial Court can proceed in accordance with law.
That appears to be just and proper. Further, if the petitioner - husband is directed to appear before the trial Court before taking of cognizance, then definitely his rights will be affected. In that light I feel that till cognizance is taken by the trial Court, if the appearance of the petitioner is dispensed with then it will meet the ends of justice.
10. In the light of the above discussions held by me, the following;
O R D E R I. The revision petition is allowed.
II. The order dated 27.10.2018 passed by the LXV Additional City Civil and Sessions Judge, Bengaluru in Crl.A. No. 454/2015 and the order of dismissal dated 07.02.2015 passed by the IX Addl. Chief Metropolitan Magistrate at Bangalore in PCR No.736/2013 are set aside and the matter is remitted back to the IX Additional Chief Metropolitan Magistrate, Bengaluru with a direction to allow the complainant – wife to produce the documents, if any, and thereafter take cognizance in accordance with law if sufficient material is available and then to pass appropriate order in this behalf.
III. It is made clear that till cognizance is taken by the trial Court, the appearance of the petitioner – husband is dispensed with.
Sd/- JUDGE.
LRS.