Full Judgment Text
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PETITIONER:
SMT. CHAND DHAWAN
Vs.
RESPONDENT:
JAWAHAR LAL AND ORS.
DATE OF JUDGMENT28/04/1992
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
PANDIAN, S.R. (J)
CITATION:
1992 AIR 1379 1992 SCR (2) 837
1992 SCC (3) 317 JT 1992 (3) 618
1992 SCALE (1)996
ACT:
Criminal Law
Code of Criminal Procedure, 1973:
Section 482-Inherent jurisdiction-Exercise of-Criminal
proceedings-When could be quashed-Whether High Court
justified in quashing the complaint when allegations prima
facie constitute an offence.
HEADNOTE:
The appellant was married to the first respondent.
After sometime the spouses started living separately. A
spurt of litigation followed thereafter. While proceedings
for dissolution of the marriage, custody of the minor
children and criminal prosecution were pending between the
parties, the appellant instituted a complaint before the
Chief Judicial Magistrate,for bigamy alleging that the first
respondent had subsequently married the second respondent
and that the parents of the Respondents No. 1 and 2, in
conspiracy intentionally abetted the performance of the
second marriage with the full knowledge that the first
marriage of the first respondent with the appellant was
subsisting. Respondents No. 1 and 2 and their parents were
arrayed as accused. After recording the statement on oath
of the complainant and two witnesses, the magistrate took
cognizance of the complaint for offences under sections 494
and 109 I.P.C., and issued summons to the accused persons.
The accused appeared before court and were released on bail.
Thereafter on an application moved by the first respondent
under Section 482 Cr.P.C., the High Court quashed the
complaint and the subsequent proceedings, holding that in
view of the contradictions which went to the root of the
case including the jurisdiction of the trial court to take
cognizance and proceed with the complaint in question, the
continuance of the proceedings on the basis of the complaint
before the trial court would amount to abuse of the process
of the court.
In the appeal, by special leave, before this Court on
behalf of the appellant-wife, it was contended that the High
Court, in exercising the
838
jurisdiction under section 482 Cr.P.C., had made a probe
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into the truthfulness of the allegations made and proceeded
to analyse the evidence which could be produced in support
of the allegations overlooking the well-settled principle
laid down for guidance in this regard.
On behalf of the respondents it was contended that the
circumstances of the case had necessarily to be taken into
account to determine whether the allegations made by the
complainant were frivolous or vexatious and actuated by
oblique motive and that in the facts and circumstances of
the instant case, where the factum of the alleged marriage
stood disproved by the contradictory statement made earlier
to the complainant, the proceedings could not be justified
and the High Court had rightly quashed the same.
Allowing the appeal, partly, this Court,
HELD:1.1. The High Court can exercise its inherent
jurisdiction of quashing a criminal proceeding only when the
allegations made in the complaint do not constitute an
offence or that the exercise of the power is necessary
either to prevent the abuse of the process of the court or
otherwise to secure the ends of justice. No inflexible
guidelines or rigid formula can be set out and it depends
upon the facts and circumstances of each case wherein such
power should be exercised. When the allegations in the
complaint prima facie constitute the offence against any or
all of the respondents, in the absence of materials on
record to show that the continuance of the proceedings would
be an abuse of the process of the court or would defeat the
ends of justice, the High Court would not be justified in
quashing the complaint. [842 D-F]
1.2. In the present case, the allegations in the
complaint are specific and clear that during the subsistence
of an earlier valid marriage, respondent Nos. 1 and 2 have
entered into a second marriage and have thereby committed an
offence falling under section 494 I.P.C. The complainant had
affirmed the fact on oath. The two witnesses produced by
the complainant before the magistrate have supported that
case. Based on the statement on oath of the complainant
read along with the evidence of the two witnesses thus
recorded and the materials available before the magistrate
to get himself satisfied that cognizance should be taken and
process issued, the magistrate was satisfied that an offence
had been disclosed and accordingly the summons had been
issued. The High Court was persuaded
839
to take the view that the continuance of the proceedings
would be an abuse of the process of the court only on the
basis of the additional materials produced by the
respondents. The materials thus produced have not been
admitted or accepted by the appellant. The truth or
otherwise of the allegations in the complaint is a matter
for proof. When the materials relied on by the respondent
require to be proved, no inference can be drawn on the basis
of those materials to conclude that the complaint is false.
The High Court was not justified in assuming that the first
information report had been lodged by the
complainant/appellant solely because she had not filed any
reply before the High Court denying the fact. No sufficient
opportunity was given to the appellant to do so. The
affidavits of one of the persons who is stated to have
performed the ceremonies would also be of no assistance in
drawing any inference either way. [842 G-H, 843 A-C]
1.3. The High Court has, therefore, clearly erred in
reaching the conclusion that the proceedings were liable to
be quashed.
1.4. The issue of process to Respondents No. 1 and 2 is
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proper and the proceedings have to continue against them.
But there is no justification to continue the proceedings
against Respondents No. 3 to 7 as they had been
unnecessarily and vexatiously roped in and the allegations
against them are vague and unsupported by any material.
State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.,
[1990] SCR Supp. (3) 259 and State of Bihar v. Murad Ali
Khan, AIR 1989 SC 1, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
269 of 1992.
From the Judgment and Order dated 18.3.1991 of the
Punjab and Haryana High Court in Crl. Misc. No. 5841-M of
1990.
Gobinda Mukhoty and Mridula Ray for the Appellant.
G.L. Sanghi and P.P. Tripathi for the Respondents.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. Leave granted.
840
The appellant, Smt. Chand Dhawan, was married to the
first respondent, Jawahar Lal, on 19.9.1972. After three
children were born, the spouses started to live separate.
The children are left with the father. A spurt of
litigation followed thereafter. Proceedings for
dissolution of the marriage, custody of the minor children
and criminal prosecution are pending between the parties.
While so, the appellant instituted a complaint before the
Chief Judicial Magistrate, Amritsar, for bigamy alleging
that Jawahar Lal married Shashi Arora at Amritsar on
8.2.1989; that the parents of Jawahar Lal and Shashi Arora
in conspiracy intentionally abetted the performance of the
second marriage with the full knowledge that the first
marriage of Jawahar Lal with the appellant, Smt. Chand
Dhawan, was subsisting. Jawahar Lal, Shashi Arora, the
parents of Jawahar Lal and the parents of Shashi Arora were
arrayed as accused. After recording the statement on oath
of the complainant and two witnesses, the learned magistrate
took cognizance of the complaint for offences under
sections 494 and 109, I.P.C., and issued summons to the
accused persons. The accused appeared before court and were
released on bail. The first respondent, Jawahar Lal,
thereafter moved the High Court of Punjab and Haryana under
section 482, Cr.P.C., for quashing the complaint. The High
Court by the impugned judgment/order dated 18.3.1991 quashed
the complaint and the subsequent proceedings. The appellant
being aggrieved has filed the appeal on special leave
granted.
The High Court in allowing the miscellaneous petition
filed by the first respondent has said that in view of the
contradictions which go to the root of the case including the
jurisdiction of the trial court to take cognizance and
proceed with the impugned complaint, the continuance of the
proceedings on the basis of the impugned complaint before
the trial court at Amritsar would certainly amount to the
abuse of the process of the court.
The two grounds for arriving at this conclusion are
that (1) the appellant had lodged the first information
report before the police on 30.3.1989 and under section 494
of the Indian Penal Code alleging that the marriage between
the respondents Nos. 1 and 2 was solemnised at Greater
Kailash, New Delhi in February 1989 quite contrary to the
allegations under the present complaint and (2) Vijay
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Bharti, one of the persons, stated to have performed the
second marriage has filed an affidavit dated 7.5.1990 before
the court stating that he did not perform any such marriage.
841
The complainant had emphatically stated before the High
Court that the documents relied on by the respondents are
not genuine, no such first information had been lodged by
the appellant before the Police Station, NOIDA, Ghaziabad
and that Vijay Bharti has also not sworn the affidavit
produced in court. The objection was rejected by the High
Court stating that the specific averments made in the
petition have not been contradicted by the complainant by
filing the reply.
The learned counsel for the appellant contended before
us that the High Court in exercising the jurisdiction under
section 482, Cr.P.C., has made a probe into the truthfulness
of the allegations made and proceeded to analyse the
evidence which could be produced in support of the
allegations and in so doing had overlooked the well-settled
principle laid down for guidance while exercising the
inherent power. According to the appellant, the learned
magistrate has taken congnizane of the complainant on the
basis of the allegations made which clearly reveal the
commission of an offence. The materials produced by the
complainant to satisfy the magistrate at the initial stage
has been duly considered before issuing process and the
question whether the case would result in conviction or not
is not a matter for consideration at that stage and there
was, therefore, no justification for the High Court to quash
the proceedings relying on the materials which have not been
legally proved. It is vehementaly contended that the copy
of the first information report filed before the court is
not genuine, that the witness Vijay Bharti had filed an
affidavit before this Court denying the genuineness of the
affidavit stated to have been filed before the High Court
and in this state of the facts it was pre-nature to conclude
that it would be an abuse of the process of the court to
proceed with the complaint. The learned counsel has also
relied on the decision of this Court in State of Haryana and
Ors. v. Ch. Bhajan Lal and Ors., JT [1990] 4 SC 650.
The learned counsel for the respondent in supporting
the impugned order of the High Court has maintained that the
circumstances of the case have necessarily to be taken into
account to determine whether the allegations made by the
complainant are frivolous or vexatious and actuated by
oblique motive and that in the facts and circumstances of
the case where the factum of the alleged marriage stands
disproved by the contridictory statement made earlier to the
complainant, the proceedings could not be justified and the
High Court has rightly quashed the same.
842
The High Court, relying on the decision of this Court
in State of Bihar v. Murad Ali Khan, AIR 1989 SC 1, pointed
out that when the High Court is called upon to exercise the
jurisdiction to quash a proceeding at the stage of the
magistrate taking cognizance of an offence, the High Court
is guided by the allegations whether those allegations set
out in the complaint or the charge-sheet do not in law
constitute or spell out any offence and that resort to
criminal proceedings within the circumstances amount to an
abuse of the process of the court or not. The High Court,
has however, in approaching the question misdirected itself
in analysing the truth or otherwise of the allegations on
the basis of the materials which could not be relied on
without legal proof. It is not disputed that the complaint
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filed by the appellant does disclose an offence under
section 494, I.P.C. The allegations made by the complainant
in law constitute and spell out an offence. If so, the only
question that could have been considered at this stage is
whether the continuance of the proceedings would be an abuse
of the process of the court. This court has in various
decisions examined the scope of the power under section 482,
Cr.P.C., and has reiterated the principle that the High
Court can exercise its inherent jurisdiction of quashing a
criminal proceedings only when the allegations made in the
complaint do not constitute an offence or that the exercise
of the power is necessary either to prevent the abuse of
the process of the court or otherwise to secure to ends of
justice. No inflexible quidelines or rigid foumula can be
set out and it depends upon the facts and circumstances of
each case wherein such power should be exercised. When the
allegations in the complaint prima facie constitute the
offence against any or all of the respondents in the absence
of materials on record to show that the continuance of the
proceedings would be an abuse of the process of the court or
would defeat the ends of justice, the High Court would not
be justified in quashing the complaint.
In the present case, we have stated that the
allegations in the complaint are specific and clear that
during the subsistence of an earlier valid marriage the
respondents Nos. 1 and 2 have entered into a second marriage
and have thereby committed an offence falling under section
494, I.P.C. The complainant had affirmed the fact on oath.
The two witnesses produced by the complainant before the
magistrate have supported that case. Based on the statement
on oath of the complainant read along with the evidence of
the two witnesses thus recorded and the materials available
before the magistrate to get himself satisfied that
cognizance should be
843
taken and process issued, the magistrate was satisfied that
an offence had been disclosed and accordingly the summons
had been issued. The High Court was persuaded to take the
view that the continuance of the proceedings would be an
abuse of the process of the court only on the basis of the
additional materials produced by the respondents. The
materials thus produced have not been admitted or accepted
by the appellant. The truth or otherwise of the allegations
in the complaint is a matter for proof. When the materials
relied on by the respondent require to be proved, no
inference can be drawn on the basis of those materials to
conclude that the complaint is false. The High Court was
not justified in assuming that the first information report
had been lodged by the complainant/appellant solely because
she had not filed any reply before the High Court denying
the fact. It does not appear that the sufficient
opportunity was given to the appellant to do so. The
affidavits of one of the persons who is stated to have
performed the ceremonies would also be of no assistance in
drawing any inference either way.
We are, therefore, of the view that the High Court has
clearly erred in reaching the conclusion that the
proceedings are liable to be quashed. In the light of the
allegations made in the complaint and the materials produced
in support of those allegations by the appellant before the
magistrate, the issue of the process to the respondents Nos.
1 and 2 who are alleged to have solemnised the second
marriage during the subsistence of an earlier valid marriage
of the appellant is proper and when process has been issued,
the proceedings have to continue in accordance with law
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against these respondents Nos. 1 and 2. so far as other
respondents are concerned, it may be said that they had been
unnecessarily and vexatiously roped in. The allegations in
the complaint so far as these respondents are concerned are
vague. It cannot be assumed that they had by their presence
or otherwise facilitated the solemnisation of a second
marriage with the knowledge that the earlier marriage was
subsisting. The explanation of the first respondent that
the second respondent has been functioning as a governess to
look after his children in the absence of the mother who had
left them implies that respondents Nos. 1 and 2 are living
together. In this background, the allegations made against
respondents 3 to 7 imputing them with guilty knowledge
unsupported by other material would not justify the
continuance of the proceedings against those respondents.
In our view, the complaint before the learned
magistrate is to be
844
proceeded with against respondents Nos. 1 and 2 only.
Accordingly, we allow the appeal to the extent of
setting aside the impugned judgment so far as respondents
Nos. 1 and 2 are concerned and restoring the complaint to be
proceeded with as against these two respondents and to be
disposed of in accordance with law.
N.P.V. Appeal partly allowed.
845