1. Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the entire criminal proceedings in connection with Ramgarh (Mahila) P.S. Case No. 29 of 2020 including the order dated 08.09.2021 passed by the learned Chief Judicial Magistrate, Ramgarh whereby and where under the learned Chief Judicial Magistrate, Ramgarh has taken cognizance of the offence punishable under Section 494 of the Indian Penal Code inter alia against the petitioner basing upon the charge sheet submitted by the police in the said case.

3. Learned counsel for the petitioner submits that the petitioner is not appearing before the trial court over four years and absconding, hence, the learned Judicial Magistrate has fixed the case for appearance of the petitioner. It is next submitted that allegation against the petitioner is false. The informant is in the habit of lodging false cases. Though the allegation is that during the subsistence of the marriage of the petitioner with the informant, the petitioner has solemnized marriage which is void by reason of the same taking place during the lifetime of the informant but the lady with whom the petitioner has solemnized second marriage namely Arina has not been arrayed as an accused of the case. It is further submitted that the offence punishable under Section 494 of the Indian Penal Code is not made out because the parties are Muslim; so, second marriage is not void. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

4. Learned Public Prosecutor appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in this Criminal Miscellaneous Petition and submit that there is no hard and fast rule that second marriage of any Muslim man when his wife is living, is not void and at best, the same is a disputed question of fact; for determination of which, the evidence is required to be led by the parties. Hence, at this nascent stage, in exercise of the power under Section 482 of the Code of Criminal Procedure, this Court cannot decide any highly contentious issue of fact. It is next submitted that since the cognizance of the offence has been taken by the learned Chief Judicial Magistrate, Ramgarh based on a Police Report, certainly, the Judicial Magistrate cannot add or subtract any section at the time of taking cognizance but the same would be permissible for the learned Chief Judicial Magistrate, Ramgarh or the learned trial court only at the time of framing of charge; which is yet to be framed and which cannot be done so far because the petitioner knowing pretty well that the summoning order has been passed against him since the year 2021, has successfully avoided appearing before the trial court till today, by hoodwinking the process of the court; which shows that the petitioner does not have any regard for law and such person is not entitled to invoke the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

5. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659, para-15 of which reads as under:-

                  “15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge- sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet.” (Emphasis supplied) that if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation has been conducted, the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet cannot fill up the lacunae and the Magistrate in a case which is based on a Police Report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 of the Code of Criminal Procedure as the case may be.

6. Now coming to the facts of the case, the undisputed fact remains that the learned Chief Judicial Magistrate, Ramgarh has taken cognizance of the offence based on the charge sheet submitted by the police after investigation of the case. The charge sheet was submitted in respect of the offence punishable under Section 494 of the Indian Penal Code, so, even if the learned Chief Judicial Magistrate, Ramgarh was of the opinion to that some other offences are also made out but cognizance of that offence could not have been taken by the learned Chief Judicial Magistrate, Ramgarh, in view of the settled principle of law that such power can only be exercised by the learned Chief Judicial Magistrate, Ramgarh while considering framing of charge; which is yet to take place because of non-cooperating attitude of the petitioner in avoiding to appear before the learned trial court for over four years though he is knowing pretty well that the summoning order has been passed against him.

7. The question as to whether solemnization of the marriage of the petitioner with another woman other than the informant when the informant is living, is void or not is a question of fact and such question of fact has been found to be true by the police during the investigation of the case in which the petitioner also took part; therefore, for determination of which, the evidence is required to be produced by the parties which can only be done in a full-dress trial of the case, but certainly the same cannot be adjudicated by this Court in exercise of its power under Section 482 of the Code of Criminal Procedure and in the absence of prosecution being given any opportunity to lead evidence.

8. So far as the contention of the petitioner that the second wife - Arina having not been impleaded as an accused is concerned, the learned trial court is having ample power even during the trial in exercise of the power under Section 319 of the Code of Criminal Procedure to implead any accused person. So, merely because an accused person has been left out in the charge sheet, the same in itself is not a ground to quash the entire criminal proceedings.

9. In view of the discussions made above, this Court is of the considered view that this is not a fit case where the prayer of the petitioner made in this Criminal Miscellaneous Petition is to be acceded to in exercise of its power under Section 482 of the Code of Criminal Procedure.

10. Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.