IN THE GAUHATI HIGH COURT

1 IN THE GAUHATI high COURT . (THE high COURT OF ASSAM, NAGALAND, MIZORAM &. ARUNACHAL PRADESH). PRINCIPAL SEAT. Criminal Revision of 2016. Sri Khagen Chandra Nath S/O Late Bhabi Ram Nath R/O:- Village Goraimara, Dhekipara :- Sipajhar District:- Darrang, Assam .. Petitioner Advocates for the Petitioner: Mr. S. Borthakur Mr. P. K. Borah Mr. H. Nath -Versus- 1. The State of Assam, represented by the Public Prosecutor, Assam. 2. Smti Meghali Rani Sharmah W/O- Khagen Chandra Nath R/O:- Goraimara, Dhekipara :- Sipajhar District:- Darrang, Assam. Present Address:- Chenikuthi, Road , Chandmari, Guwahati, Pin:- 781003..Respondents Advocates for the Respondents: Mr. D. Borgohain 2. BEFORE. THE HON'BLE MRS JUSTICE RUMI KUMARI PHUKAN. Date of hearing : 27-04-2016. Date of Judgment & Order : JUDGMENT AND ORDER (CAV). Heard Mr. S. Borthakur, learned counsel for the petitioner and Ms.

2 D. Borgohain, learned counsel appearing for the respondent No 2. (2) The instant revision petition under Section 397/401 r/w Section 482. CrPC is preferred by the petitioner, who is an accused in Case 535/2014 pending before the COURT of Judicial Magistrate First Class, Kamrup (M), Guwahati, that was filed by the respondent wife under Section 494/109 of IPC. (3) The facts necessary for disposal of the matter is that the present respondent being involved in a relationship with the petitioner for several years got married to him on and subsequently two daughters were born out of the marriage. Owing to marital dispute between the parties the respondents began to reside separately from the petitioner along with her daughters in the year 1995. Thereafter on the respondent wife filed a complaint case before the learned CJM, Darrang, Mangaldai, 3. against the petitioner alleging inter-lia that the petitioner was untraceable since and then she came to know that the petitioner had married another women namely, Nirupama Devi and started to live as husband and wife and he has threaten to leave her.

3 On the basis of same a complaint case was registered as Case u/s 494/114/. 120(B)/34 IPC and the same was forwarded to the officer-in-charge concerned to register a case and for investigation. However after filing of the aforesaid case both the parties enter into a mutual agreement dated and it was filed before the learned CJM, which was registered as , praying for recalling of the complaint petition which was forwarded to the Police Station. Accordingly, the learned CJM forwarded the said petition to the said Police Station. (4) After living separately for about 15 years the petitioner filed a case under Domestic Violence Act, vide MR case , wherein, maintenance was granted to the respondent by the learned trial COURT which was upheld by the two forum the Appellate COURT and the Revisional COURT , whereby the petitioner was directed either to let the respondent No.

4 2. live in the matrimonial house or to provide Rs 2,000/- per month towards rental charge and also to pay compensation. During the course the aforesaid Criminal Revision COURT before the Hon'ble high COURT the respondent wife on filed a complaint case vide CR , u/s 494/109 IPC, 4. with the same allegation that has been alleged in the earlier complaint petition CR. , u/s 494/114/120(B)/34 IPC, to the effect that after continuing their marital life since with the respondent and having two children out of such wedlock, the petitioner married another women namely Nirupama Devi. Admitting about the earlier complaint case , filed by her, respondent has stated that after knowing about the filing of the case against him, the petitioner immediately persuaded her to withdraw the case by threatening and forcing her to enter into an agreement wherein he agreed to pay the maintenance to her and her daughters.

5 It is also admitted that in the complaint petition that the said agreement dated was registered before the Sub Register, Guwahati and pursuant to the agreement the complaint case so filed by her was withdrawn on In the present complaint petition referring about the case filed under the Domestic Violence Act, by her and other facts it has been submitted that as she could not able to collect the evidence of the second marriage and subsequently after much efforts she could obtain the certified copy of the marriage agreement entered into between the petitioner and her second wife she has filed the complaint petition. On the basis of the said complaint the COURT took cognizance of the offence u/s 494/109 IPC. (5) In pursuance of the summons served on him the petitioner entered his appearance in the aforesaid case before the COURT and referring to the 5.

6 Earlier case urged the COURT to call for report u/s 210 CrPC and also filed a petition u/s 182(2) CrPC raising the issue of jurisdiction to try the case. Accordingly, the COURT heard the objection so filed by the respondent/complainant, and finally pleased to dismiss both the petitions by the impugned order dated , whereby the COURT held that the COURT has jurisdiction to try the case and as no such complaint case CR. case 800/95 is pending between the parties so the case will proceed against the petitioner and directed the respondent to produce witnesses before charge. (6) Challenging the aforesaid order dated , the impugned revision petition has been filed on the ground that the said order is bad in law as well as fact. It has been contended that the trial COURT failed to appreciate that the present complaint case has been filed only to harass the petitioner, while she has already settled the matter of dispute far back in the year 1995.

7 That apart that the respondent has shown her address as Mongoldoi in various other cases but, in the present case she has shown her address to be of Kamrup, Guwahati which is totally false, and accordingly, the learned Magistrate Guwahati has no jurisdiction to try such case u/s 494 of the IPC and the learned Magistrate has committed grave error by rejecting the petition so filed by the petitioner u/s 182(2) CrPC. Similarly, the present complaint petition with same set of allegations after 19 years of 6. compromise/settlement agreement between the parties is bad in law and fact and the cognizance taken by the COURT also bad, hence it is urged that CR case 535/2014 is liable to be set aside. Further it is contended that the learned COURT below while passing the impugned order dated did not take into consideration of the documents annexed with his petition.

8 (7) The respondent No. 2 has vehemently resisted the contention so raised by the petitioner and have also filed their affidavit-in-opposition. In response to the assertion so made by the petitioner regarding filing of the earlier case by the respondent in the year 1995 and about the agreement and recall of the case the same has been admitted, but it has been submitted that the same was withdrawn on threatening and by way of force by the petitioner. However, it has been submitted in terms of the said agreement the respondent failed to provide proper maintenance to her and her children so she have to file cases for getting proper maintenance under Domestic Violence Act in the year 2010. By referring to the other proceeding so filed by both the parties it has been contended by the respondent that there is no denial that she is the wife of the present petitioner.

9 As regard the earlier CR Case , it has been contended that no charge- sheet/final report etc has been filed against the complaint petition, and the learned Magistrate has already obtained a report from the concerned that no such case was registered as against the CR. Case On the 7. basis of which it has been contended that as there is no case pending in respect of CR. Case so there is no bar for proceeding to the present case as the marital offence is continuing one and there is no limitation for taking cognizance u/s 468 CrPC as regard such matrimonial offences. Further, the learned Magistrate has territorial jurisdiction to try such offences where the respondent reside and in this regard the decision reported in 1985 Criminal Law Journal 601 Ravindar Kaur Vs. Gurnit Singh & Ors. has been relied. (8) Considered the argument advanced on behalf of both the parties.

10 According to the learned counsel for the petitioner such a contention raised by the respondent that the second complaint on the same sort of allegation can be filed is not maintainable in the given facts and circumstances while the respondent herself has filed the join petition to recall the complainant withdrawing all the allegations. Now, although there is no specific order by the COURT in this regard but things remain that relying upon the said deed of agreement the respondent who was the complainant in the said case did not pursue the matter as a result of which the did not even registered the case on the basis of joint petition so forwarded to him. From the circumstances itself it reveals that the respondent/complainant was abide by the agreement and she never came forward immediately after execution of 8. the agreement that it was executed forcefully or on threatening by the petitioner.