Decided on November 10,1983



- (1.) ON September 6,1978, the petitioner Somnath bhattacharjee filed a complaint against the opposite party Tapas Kumar Bhattacharjee alleging that the latter commuted adultery with his wife without his consent. On that complaint, the opposite party was summoned to stand on trial under section 497 IPC. After the witnesses for the complainant were examined, the learned Judicial Magistrate, who in seisin of the case, discharged the accused-opposite party on the ground that the evidence did not disclose a prima facie case against him. Aggrieved thereby, the petitioner has filed the instant revisional application.
(2.) IT appears that prior to the filing of the complaint which resulted in the impugned order of discharge, the petitioner filed, an application before the Sub-Divisional Judicial Magistrate, Barrackpore on July 14, 1978 alleging commission of offences under section 497/312 IPC against the opposite party and prayed for an order under section 156 (3) Cr. PC on the same. The said application was taken up for consideration on July 15, 1978 on which date the petitioner filed a petition of complaint alleging commission of the offence under section 312 IPC against his wife. On that complaint, the learned Magistrate passed an order for tagging the application filed on the, previous day with the complaint filed on July 15, 1978. On that petition of complaint which was registered as Case no. C595 of 1978, the wife of the petitioner was proceeded against under section 312 ipc which ultimately ended in an order of discharge on July 31, 1981, that is, during the pendency of the complaint, which is the subject matter of the present Rule.
(3.) ON perusal of the impugned order, I find that in passing the impugned order of discharge, the learned Magistrate relied upon the fact that in his earlier case the petitioner did not state that the opposite party committed adultery with his wife on june 30, 1978 which was the subject matter of the complaint. In my considered view, the learned Magistrate was not justified in relying upon the same without taking recourse to section 145 of the Evidence act. Under the said section before any witness was to be discredited with reference to a contradictory statement made by him earlier, it was incumbent on the part of the accused to draw his attention to the previous statement by which he was to be contradicted to enable him to give an explanation. Apart from this infirmity, the other infirmity which Mind in the order of the learned Magistrate is that the learned magistrate relied much upon the absence of the allegation of adultery committed on june 30,1978 in the complaint filed by the petitioner against his wife u/s. 312 IPC. In that complaint, the allegation made by the petitioner was that his wife caused miscarriage of the child on July 12, 1978 without his consent and connivance. The allegation of miscarriage being the offence the date of alleged adultery was' not of much importance.;

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