- (1.) The same story of an innocent Indian bride being duped by her N.R.I. husband is repeated here in this case. The revisionist No. 1 residing at America performed a second marriage with revisionist No. 2. Her first wife Priyambada Tripathi (Opposite party No. 2 in the instant revision) filed a complaint case against him in the court of Magistrate under Section 494, I.P.C. (bigamy) impleading the second wife also. Learned Magistrate after recording her statement and also of the witnesses under Sections 200 and 202, Cr.P.C. respectively, summoned the accused persons (both the revisionists). But the revisionists taking advantage of the situation of residing at America did not appear. On their behalf two counsel appeared on 14.11.1990 and challenged the maintainability of the complaint case. They also sought exemption from personal attendance of the accused person which was granted till the stage of case-proceedings reaching up to recording of statement of witness under Section 244, Cr.P.C. The evidence under Section 244 was closed on 11.6.1992 but when even after expiry of the period so exempted, the accused persons did not appear, coercive methods were adopted against them. However, as the warrant of arrest could not be executed on them due to revisionists being residing in America, a request was made by the complainant Smt. Priyambada Tripathi to the Magistrate to issue process under Sections 82-83, Cr.P.C. for attachment of their property situated at India to compel them to appear before the court. But the learned Magistrate rejected her application vide order dated 7.4.2001 on the sole ground that unless and until N.B.W. is executed against the revisionists, no process under Sections 82-83, Cr.P.C. can be issued. Aggrieved by the aforesaid order of the Magistrate, Smt. Priyambada Tripathi (opposite party No. 2), filed Revision No. 135 of 2001 before the learned Session Judge, Mirzapur. The learned Session Judge Mirzapur by the impugned order dated 31.8.2001, allowed her revision and directed the Magistrate to issue process under Sections 82-83, Cr.P.C. against the revisionists for securing their attendance.
(2.) The aforesaid order dated 31.8.2001 of learned Sessions Judge, Mirzapur has been challenged by means of the instant revision on the following grounds. "(1) By the impugned order the learned Sessions Judge, has entertained the revision against an interlocutory order. As the revision filed earlier by Smt. Priyambada Tripathi against the order of Magistrate rejecting to issue process under Sections 82-83, Cr.P.C. was itself not maintainable, due to its being filed against an interlocutory order, the order passed on it is also without jurisdiction. (2) By order dated 7.4.2001 the Magistrate had directed the opposite party No. 2 Smt. Priyambada Tripathi, to comply with the directions issued in the High Court's letter dated 30.10.1999 and to take steps accordingly but the opposite party No. 2, instead of complying with the directions mentioned in the High Court's letter and instead of taking steps accordingly, filed a revision, which ought not to have been heard. (3) Because the learned Session Judge has not recorded any finding that the accused/revisionists are absconding or concealing themselves and without arriving at the conclusion that the accused/revisionists are absconding or concealing themselves, process for proclamation and attachment under Sections 82-83, Cr.P.C. were issued. (4) Admittedly the accused/revisionists are living in America. They are neither absconding nor concealing themselves nor avoiding the warrant of arrest. (5) Admittedly the warrant of arrest has not yet been sent to America where accused/revisionists are residing. (6) Admittedly, the accused/revisionists had left India much prior to the filing of the complaint and issuance of the warrant of arrest. They have gone abroad on valid passport and Visa granted by the Ministry of External Affair, New Delhi and are residing at America validly. (7) The attendance of the accused/revisionists can only be procured under the provision of the Extradition Act, 1962 and under the Extradition Act, 1962, there is no reference of the applicability of Sections 82-83, Cr.P.C. Therefore, the judgment of learned Session Judge is against the provisions of the Extradition Act, 1962 but the learned Session Judge has totally ignored its provision. (8) The warrant of arrest cannot be served or executed in the territory of U.S.A. as there exists no mutual legal assistance treaty in the criminal matters between India and U.S.A.
(3.) On the aforesaid grounds raised by Sri Arvind Srivastava, the learned counsel for the revisionists it has been prayed that the revision be allowed and the impugned judgment dated 31.8.2001 passed by the learned Session Judge, Mirzapur be set aside.;