Crl. Misc. No. M-12892 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-12892 of 2010 Date of Decision : November 14, 2011 Shekhar Wadhwa and others .... PETITIONERS Vs. Sonia wife of Shekhar Wadhwa ..... RESPONDENT CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Ashwani Gaur, Advocate, for the petitioners. Mr. S.K.Garg Narwana, Advocate, for the respondent. * * * AUGUSTINE GEORGE MASIH, J. Prayer in this petition under Section 482 of the Code of Criminal Procedure is for quashing of complaint No. 8 dated 17.02.2010 (Annexure P-3) under Sections 109,166, 167, 201, 218, 420, 427, 465, 467,468,471,494,120-B IPC against the petitioners and four others by the complainant and the summoning order dated 22.03.2010 (Annexure P-4), vide which petitioners No. 1 to 9 have been summoned as accused under Sections 109/166/167/201/420/465/467/468/471/494/120-B IPC. Crl. Misc. No. M-12892 of 2010 2 It is the contention of the counsel for the petitioners that respondent-complainant earlier filed complaint dated 07.11.2007 (hereinafter referred to as 'First complaint') under Sections 166/167/201/218/420/427/465/467/468/471/120-B IPC against petitioners No. 1 to 3 and Suresh son of Sh. Nand Lal, Sunder Singh, Process Server and Ram Karan, Process Server, who are accused in the impugned complaint dated 17.02.2010 (hereinafter referred to as 'Second complaint') as accused 11, 12 and 13 respectively. Except for Sections 109 and 494IPC, all the offences were alleged to have been committed by them in the First Complaint. On consideration of the preliminary evidence led by the respondent-complainant in the First complaint, petitioner No. 1 and accused Suresh, Sunder Singh and Ram Karan were summoned by the Judicial Magistrate, Ist Class, Panipat, vide order dated 05.05.2008 (Annexure P-2). The First complaint was filed alleging therein that petitioners 1 to 3 harassed the complainant for not bringing sufficient dowry and bringing a Maruti car instead of Santro car, which they had expected. She was being taunted even for trifle matters. While she was admitted in hospital for her delivery, she was not taken care of by petitioners No. 1 to 3. Her parents got her admitted in Jindal Nursing Home where she gave birth to a dead male child on 11.02.2005. She was discharged from hospital on 16.02.2005 but petitioners No. 1 to 3 refused to take her back in the matrimonial house. Despite various requests made by the complainant that she be taken back in the matrimonial house. She had been requesting them time and again to take her back in the matrimonial house. On 08.10.2007, petitioner No. 1, who is her husband, taunted her that he had already obtained a divorce from her. She immediately contacted an Advocate, who verified from the judicial records that an ex- Crl. Misc. No. M-12892 of 2010 3 parte judgment and decree dated 06.04.2007 had already been obtained by her husband-petitioner No. 1. The records further revealed that the concerned Process Servers, who were responsible for effecting service of summons on her, in active collusion and in connivance with petitioners No. 2 and 3, endorsed her refusal to accept summons in their report. On consideration of the preliminary evidence led, petitioner No. 1 and other three accused, except petitioners No. 2 and 3, were summoned by the Court to face trial vide order dated 05.05.2008. The Second complaint has been filed on 17.02.2010 not only against petitioners No. 1 to 3 but also against three sisters of petitioner No. 1 and their husbands. Apart from these, one Khem Chand, a cousin of the father of petitioner No. 1, has also been impleaded as an accused apart from Suresh, Sunder Singh and Ram Karan, the three accused in the First complaint. Petitioner No. 10, who is the second wife of petitioner No. 1, has also been impleaded as accused No. 14 and in this complaint, the initial allegation was with regard to obtaining of the ex-parte decree of divorce in connivance with the Process Servers Sunder Singh and Ram Karan on the basis the false statement and evidence given by Suresh. In the complaint, it has been alleged that subsequently, it has so happened and she has come to know that prior to obtaining the ex-parte decree of divorce, an ex-parte decree of restitution of conjugal rights was obtained by petitioner No. 1, which was again in connivance with the Process Servers. Applications were moved by her for setting aside the ex-parte decrees obtained under Sections 9 and 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act'), which were allowed by the Court vide order dated 25.03.2008. Against these orders, revision petition Nos. 2083 and 2084 of 2008 were preferred in the High Court, which were dismissed Crl. Misc. No. M-12892 of 2010 4 by a common order dated 07.04.2008. In this order, a direction was issued to initiate enquiry to determine the role of the Process Servers in helping petitioner No. 1 in obtaining ex-parte decrees. During the pendency of the trial before the Courts below in the petitions preferred under Sections 9 and 13 of the Act filed by petitioner No. 1, he unconditionally withdrew petition under Section 9 of the Act on 01.10.2008 and petition under Section 13 of the Act on 10.12.2009. This, it is alleged, was done on the basis of a criminal conspiracy hatched with common intention to get rid of complainant by fraudulent means as he had celebrated second marriage with accused No. 14 on 20.09.2007. It is alleged in this complaint that all the petitioners were hand in glove with each other and the decrees were obtained by playing fraud. As petitioners No. 2 to 9 had participated in the second marriage between petitioners No. 1 and 10, which was held on 20.09.2007, they had abetted petitioner No. 1 to celebrate second marriage with petitioner No. 10 and petitioner No. 10 also knew it very well that these decrees were secured by fraudulent means and that she had no right whatsoever to enter into wedlock with petitioner No. 1, thus, they were all liable not only for commission of offence under Section 494 IPC but for offence of fraud and cheating as well. On consideration of the preliminary evidence led by the complainant in the second complaint dated 17.02.2010, learned Additional Chief Judicial Magistrate, Ist Class, Panipat, summoned petitioners 1 to 9 under Sections 109/166/167/201/218/420/427/465/467/468/471/494/120-B IPC and petitioner No. 10 under Sections 494 and 120-B IPC. He, on this basis, contends that the present petition against the petitioners is not maintainable as all the offences except for offence under Section 494 IPC, Crl. Misc. No. M-12892 of 2010 5 second complaint dated 17.02.2010 cannot sustain, as earlier on these very allegations, which have been made in the Second complaint, First complaint filed by her dated 07.11.2007 (Annexure P-1) although petitioners No. 2 and 3 were also arrayed as accused, but they were not summoned by the trial Court vide order dated 05.05.2008 and only petitioner No. 1 was summoned. This order has attained finality as the same has not been challenged. The First complaint is pending before the trial Court and petitioner No. 1 along with other three accused, who have been summoned, are facing trial. His further contention is that the offence under Section 494 IPC is not made out against any of the petitioners as on the date when the second marriage took place i.e. 20.09.2007, the ex-parte decree of divorce dated 06.04.2007 was subsisting. Even the applications for setting aside the ex-parte decrees were moved by complainant on 12.10.2007 which is after the date of second marriage and as a matter of fact, ex-parte decrees were set aside on 25.03.2008. In support of this contention, counsel for the petitioners has relied upon a judgment of the Supreme Court in the case of Gopal Divedi vs. Prabha Divedi, 2003 (2) RCR (Criminal) 712, which has been followed by this Court in Padam Kumar vs. State of Haryana and others, 2007 (2) RCR (Criminal) 209 as also in Bir Bahadur Singh and others vs. State of Punjab and another, 2007 (1) RCR (Criminal) 786. Accordingly, he prays for quashing of the impugned Second complaint and the summoning order. On the other hand, counsel for the respondent has vehemently contended that the second complaint was filed by the complainant after she came to know about the true facts involved in the case. His contention is that the First complaint only related to the obtaining of the ex-parte decree Crl. Misc. No. M-12892 of 2010 6 of restitution of conjugal rights under Section 9 of the Act and the ex-parte decree of divorce obtained under Section 13 of the Act. As further offence was committed by the petitioners by participating and conniving with petitioner No. 1 in performance of the second marriage of petitioner No. 1 and petitioner No. 10, the second complaint has been rightly filed against all the petitioners as they were all conniving with each other and had committed the offences of fraud and cheating as well. Petitioner No. 10 was very well aware of the decrees, which were obtained by petitioner No. 1 along with other petitioners by fraudulent means and, therefore, knew that those decrees were not valid but still proceeded to marry petitioner No. 1. His further contention is that in the light of the setting aside of the ex- parte decrees by the Court below vide order dated 25.03.2008 and thereafter, withdrawal of both the petitions under Sections 9 and 13 of the Act by petitioner No. 1, there remains no dispute with regard to the validity and subsistence of the marriage of petitioner No. 1 with the complainant and, therefore, the offences committed by the petitioners are clearly made out against them and they have been rightly summoned by the trial Court. He, accordingly, prays for dismissal of the present petition. I have heard the counsel for the parties and have gone through the records of the case. The facts are not in dispute. The marriage between petitioner No. 1 and the respondent-complainant was solemnized on 03.07.2003. Petition under Section 9 of the Act was filed by petitioner No. 1 on 13.06.2005 and an ex-parte decree for restitution of conjugal rights was obtained on 01.10.2005. Petition under Section 13 of the Act for grant of decree of divorce was filed by petitioner No. 1 on 11.10.2006, wherein he obtained an ex-parte decree of divorce on 06.04.2007. The second Crl. Misc. No. M-12892 of 2010 7 marriage was performed by him with petitioner No. 10 on 20.09.2007. Applications for setting aside the ex-parte decrees were filed by the respondent-complainant on 12.10.2007. One of the grounds taken therein was that she had not been served and there has been connivance and fraud played on her by the Process Servers and wrong statement/report has been submitted with regard to service having been effected on her. First complaint dated 07.11.2007 was preferred by her against her husband Shekhar Wadhwa (petitioner No. 1), Smt. Savitri Wadhwa (petitioner No. 2), Sh. J.D.Wadhwa (petitioner No. 3), who are mother and father of petitioner No. 1. Sunder Singh, Ram Karan and Suresh were also arrayed as accused in the complaint. The application for setting aside ex-parte decrees was allowed by the trial Court vide order dated 25.03.2008, wherein connivance of petitioner No. 1 with the Process Servers Sunder Singh and Ram Karan and the false evidence and statement given by Suresh came to light. On consideration of the preliminary evidence led by the respondent-complainant, petitioner No. 1 and accused Sunder Singh, Ram Karan and Suresh were summoned under Sections 166, 167, 218, 420, 465, 467, 468, 471 and 120-B IPC. Petitioners No. 2 and 3 were also arrayed as accused Nos. 2 and 3 in the First complaint dated 07.11.2007 but they were not summoned to face trial. This order was not challenged by the respondent-complainant in any Court and the same had attained finality. Petitioner along with other three accused are facing trial before the Court below. The second complaint (impugned herein) dated 17.02.2010 was preferred by the complainant, wherein, apart from repeating the same allegations which were made in the first complaint dated 07.11.2007, commission of offence under Section 494 IPC was alleged not only against petitioners No. 1 to 3, who were accused in the First complaint but against Crl. Misc. No. M-12892 of 2010 8 Suresh, Sunder Singh and Ram Karan also, who were arrayed as accused as 11, 12 and 13 respectively. Petitioners No. 4 to 6 are sisters of petitioner No. 1 whereas petitioners No. 7 to 9 are their husbands. Petitioner No. 10 is the second wife of petitioner No. 1. These facts would clearly make out that for offences committed under Sections 109/166/167/201/218/420/427/465/467/468/471/120-B IPC except for Section 494 IPC an earlier complaint has been filed by the complainant on the same facts in which no allegations were levelled against petitioners No. 4 to 9. It would not be out of way to mention here at the cost of repitition that qua those offences, although petitioners No. 2 and 3 were arrayed as accused but they were not summoned by the trial Court while passing order dated 05.05.2008 which has attained finality. The second complaint with regard to the same offences, based on the same facts and allegations, is not maintainable against petitioners No. 2 to 9. As regards the commission of offence under Section 494 IPC is concerned, the same also is not made out against petitioners No. 2 to 10 even if the allegations as levelled in the complaint are taken to be correct, in the light of the judgment of the Supreme Court in Gopal Divedi's case (supra), wherein it has been held that on the date when the second marriage was conducted, the first marriage was not subsisting in view of the ex-parte decree, which continued in force on the said date. It would not be out of way to mention here that the applications for setting aside of the ex-parte decrees were also filed after the conduct of second marriage. The ex-parte decree of divorce is dated 06.04.2007, second marriage was performed on 20.09.2007 and the applications for setting aside the ex-parte decrees were filed on 12.10.2007. The ex-parte decree was set aside on 25.03.2008, therefore, the offence under Section Crl. Misc. No. M-12892 of 2010 9 494 IPC is not made out against petitioners No. 2 to 10. On 20.09.2007, when the second marriage was performed between petitioners No. 1 and petitioner No. 10, there was a valid decree of divorce. That apart, allegations with regard to fraud, mis-representation and cheating for obtaining the ex-parte decrees under Sections 9 and 13 of the Act have been prima-facie found to have been committed by petitioner No. 1 and other three co-accused, who have been summoned by the Court vide order dated 05.05.2008 in the first complaint preferred by the complainant, which is pending trial. The allegations made in the present complaint qua petitioners No. 2 to 10 are not made out and, therefore, the impugned complaint dated 17.02.2010 (Annexure P-3) cannot sustain qua them. The continuance of this complaint against these petitioners would be an abuse of process of Court, which cannot be permitted. As a consequence thereof, the summoning order dated 22.03.2010 qua these petitioners also cannot sustain. Similar is the view expressed by this Court in Padam Kumar's case (supra) and Bir Bahadur Singh's case (supra). As regards petitioner No. 1, there is ample evidence led by the complainant during her preliminary evidence before the trial Court, which would prima-facie make out the commission of the offence, for which he has been summoned by the Court vide order dated 22.03.2010. As per the preliminary evidence, it appears that the ex-parte decrees were obtained by this petitioner in connivance with accused Suresh, Sunder Singh and Ram Karan. This is apparent from order dated 25.03.2008 setting aside the ex-parte decrees. That apart, orders of dismissal from service of Sunder Singh from the post of Process Server after a regular departmental enquiry, has been placed on record by the respondent. It has been stated by the counsel for the respondent that Ram Karan has also been dismissed Crl. Misc. No. M-12892 of 2010 10 from service after holding a regular departmental enquiry, who was also a Process Server. The judgments relied upon by the counsel for the petitioners would not be applicable to the case of petitioner No. 1 as in the light of the preliminary evidence, it cannot be said that no offence is made out against petitioner No. 1 in the complaint. Accordingly, the prayer made by him in the present petition cannot be accepted. In view of the above, petition qua petitioner No. 1 is hereby dismissed and qua petitioners No. 2 to 10, the same is allowed. Complaint No. 8 dated 17.02.2010 (Annexure P-3) and the summoning order dated 22.03.2010 (Annexure P-4) along with all consequential proceedings arising therefrom are hereby quashed qua petitioners No. 2 to 10 alone. (AUGUSTINE GEORGE MASIH ) November , 2011 JUDGE pj