Order

1. Instant Criminal Misc. Petition under Section 482 Cr.P.C. has been filed on behalf of the petitioner assailing the order dated 21.01.2019, passed by learned Additional Sessions Judge (Women Atrocity Cases), Bhilwara in Criminal Revision No.04/2018 whereby learned Revisional Court dismissed the revision and affirmed the order dated 04.12.2017 passed by learned Judicial Magistrate No.1, Bhilwara in Criminal Case No.219/2008 rejecting the petitioner's application under Sections 245 and 256 of Cr.P.C.

2. Brief facts of the case are that the complainant-respondent No.2 submitted a complaint before the learned Judicial Magistrate No.1, Bhilwara, inter alia alleging that her marriage was solemnized with the petitioner on 23.04.2000 as per Hindu rites and customs. Out of the said wedlock, a daughter was born. It was further alleged that after the marriage, the petitioner started subjecting the complainant to mental and physical cruelty. During her pregnancy, the petitioner allegedly ousted her from the matrimonial home, and since then she has been residing at her parental house. It was also alleged that the petitioner subsequently performed a second marriage with one Seema on 09.06.2006.

3. The learned trial Magistrate forwarded the complaint under Section 156(3) Cr.P.C. to Police Station Sadar, Bhilwara, for investigation, whereupon FIR No.157/2006 was registered for offences punishable under Sections 498A and 494 of the IPC and investigation was commenced. After completion of investigation, the police submitted a negative final report. Thereafter, the complainant-respondent No.2 filed a protest petition, in which statements of two witnesses were recorded. The learned trial Court, after hearing the arguments, took cognizance against the petitioner for the offence punishable under Section 494 of the IPC and issued summons.

4. Thereafter, the petitioner filed an application under Sections 245 and 256 of Cr.P.C. before the learned trial Magistrate, stating that since the complainant and her counsel are not appearing in the proceedings, he be acquitted in view of the provisions of Section 256 of Cr.P.C. The learned trial Magistrate, vide order dated 04.12.2017, rejected the said application. Aggrieved thereby, the petitioner preferred a revision petition before the learned Additional Sessions Judge (Women Atrocity Cases), Bhilwara, who, vide order dated 21.01.2019, dismissed the revision petition and affirmed the order dated 04.12.2017. Hence, the present Criminal Misc. Petition has been filed.

5. Learned counsel appearing on behalf of the petitioner submits that the learned Courts below have committed a grave error in passing the impugned orders. It is contended that during investigation, statements of complainant and her witnesses were recorded by the Police and reached to the conclusion that no offence under Section 498A IPC is found to be made out, however, offence under Section 494 IPC was found proved, but since the said offence is non-cognizable in nature, therefore, Police submitted a negative final report in the matter. It is further submitted that subsequently, on the protest petition, cognizance was taken and vide order dated 04.12.2017, charge for the offence under Section 494 IPC was framed against the petitioner by the trial Court without following the procedure prescribed under Sections 244, 245, and 246 of the Cr.P.C. It is further submitted that the learned Courts below failed to consider that the learned trial Court had taken cognizance against the petitioner for the offence under Section 494 IPC and, vide order dated 29.08.2008, directed the complainant to produce the list of witnesses. It is submitted that the learned trial Court did not direct the Assistant Public Prosecutor to contest the case on behalf of the complainant. It is contended that since the complainant and her counsel failed to appear on the dates of hearing, the petitioner is entitled to the benefit of Sect