E X ANTHONY Vs. MALIAKKAL PERIANCHERY ANSA

JUDGEMENT

(1.) A short, but an important question of law which arises for consideration in this petition is:

(2.) Respondent herein filed a complaint under Section 200 Cr.P.C. before the jurisdictional Magistrate alleging that during the subsistence of her marriage with the petitioner, he had married another lady i.e. accused No.2 and as such, accused Nos.1 & 2 had committed offences punishable under Sections 107, 111, 112, 117, 493 and 494, 496 and 497 of IPC.

(3.) On recording of sworn statement of the complainant, process came to be issued to the petitioner and after recording the plea of the accused, respondentcomplainant got herself examined as P.W.1 on more than one occasion and was subjected to crossexamination. Two (2) witnesses were examined on behalf of complainant and they were also cross examined. After hearing the arguments before charge, learned Magistrate by order dated 28.09.2004 ordered for framing of charge against the petitioner accused No.1 and accused No.2 for the offence punishable under Section 494 IPC. Said order came to be questioned by the petitioner herein before the Sessions Court, which challenge came to be negatived and it was confirmed by this Court on 25.11.2010 in Cr.P.No.3832/2005. On 30.07.2011 charge came to be framed against accused Nos. 1 and 2 and matter came to be listed for recording complainant's evidence and evidence in part came to be recorded on 24.07.2012 and adjourned to 15.09.2012. On 26.07.2013 petitioner-first accused filed an application under Section 246 Cr.P.C. contending interalia that after framing of charge accused-petitioner had pleaded not guilty and had also not proposed to cross-examine the complainant and her witnesses as provided under Section 246(5) Cr.P.C. and as such, next step which the learned Magistrate will have to take is to record the evidence of remaining witnesses of the complainant, if any and trial Court would not be empowered to record further evidence of the complainant. It was also contended that further examination-in-chief of complainant after framing of charge is contrary to the procedure contemplated or prescribed under Section 246(5) and 246(6) of Cr.P.C. On these grounds, petitioner-accused sought for a direction to the complainant to examine the remaining witnesses, if any and to reject the prayer of the complainant for her further examination-in-chief. This application came to be opposed by the complainant i.e., respondent herein by filing objections. Trial Court after considering rival contentions by impugned order dated 17.09.2016 dismissed the application filed by accused on the ground that matter was posted for recording of further examination-in-chief of P.W.1 on 26.07.2013 and adjourned from time-to-time to hear on the application filed under Section 246 Cr.P.C. by the accused and on account of non-prosecution, complaint had been dismissed on 18.01.2014, which order came to be set aside by the Fast Track Court on 14.10.2014 directing the Magistrate to proceed with the matter in accordance with law by concluding and holding complainant has a right to lead further evidence and also on the ground that complainant is master of her case and as such, it would not be proper for the Magistrate to direct the complainant to lead the evidence of her witnesses only.