1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 Date of Decision: 25.2.2009 Parveen Kaur …. Petitioner Versus State of Punjab and another …. Respondents Present : Mr. Ranjan Lakhanpal, Advocate for the petitioner. Mr. P.S. Sidhu, Additional Advocate General, Punjab for the respondent-State. Mr. Vineet Soni, Advocate for respondent No.2 *** S.S. SARON, J. This revision petition has been filed by the petitioner against the order dated 10.9.2005 passed by the learned trial Magistrate whereby Kamaljit Singh (respondent No.2) has been acquitted of the charges framed under Sections 406, 498-A and 495 Indian Penal Code (‘IPC’– for short). A criminal miscellaneous application has also been filed seeking condonation of 215 days delay in filing the revision petition. The petitioner submitted an application for registration of a case against Kamaljit Singh (respondent No.2) and four others. It was alleged by the petitioner that Kamaljit Singh Grewal (respondent No.2) had solemnized his marriage with the petitioner on 1.7.1990. Thereafter, the petitioner learnt that he was already married with one Malligeswari on 9.11.1989. A marriage certificate No.20125 was issued on 21.11.2000 by the authorities at Singapore in this regard. The marriage of the petitioner with respondent No.2 was attended by all the other accused also. Kamaljit Singh (respondent No.2) was 2 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 employed in the Merchant Navy as Marine Superintendent with Tradeco Enterprises Singapore. After the marriage they resided at Mohali as tenants. Respondent No.2 had finalized a deal for the purchase of a house at Mohali. On getting its possession they shifted to the said house on 16.7.1990. It has been alleged by the petitioner that within ten days of his marriage with Malligeswari on 9.11.1989, the accused persons issued an advertisement in the ‘Tribune’ on 18.11.1989 wherein the earlier marriage of respondent No.2 with Malligeswari was concealed. Besides, the accused resorted to falsehood by concealing the age of respondent No.2 as 35 years. The father of the petitioner responded to the said advertisement and thereafter their marriage was solemnized. In December, 1990, the respondent No.2-Kamaljit Singh took the petitioner to Singapore on a single journey visa. During the stay of the petitioner at Singapore, the respondent No.2 introduced her to Malligeswari as the landlady and she was visiting the house to spend weekends on every Friday. In June 1993, the accused Kamaljit Singh (respondent No.2) took the petitioner to Singapore on a work permit as a domestic servant and not as his wife. At that time, Malligeswari had a one year old son. On 12.2.1994, the petitioner gave birth to a son and she had a second child on 13.6.1995 at the parental house of the petitioner at Mohali. Kamaljit Singh (respondent No.2) deceptively obtained a writing regarding a consent divorce. At the time of agreeing to the consent divorce, respondent No.2 had, however, assured the petitioner that he would transfer the ownership of his house at Mohali to her and he would also give her Rs.25 lacs in cash; besides, her Streedhan, ornaments, dowry etc. to the tune of Rs.3,43,000/-. Kamaljit Singh (respondent No.2) took the petitioner to the Court on 14.2.1997 and got a divorce petition filed. In the said petition, he falsely mentioned himself as unmarried and the said petition was dismissed. Kamaljit Singh (respondent No.2) 3 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 again took the petitioner to the Court on 10.6.1997 and filed a fresh petition. In the said petition also Kamaljit Singh (respondent No.2) mentioned himself to be unmarried. The said petition was fixed for final hearing on 19.12.1997. At that time, Kamaljit Singh (respondent No.2) gave a brief case to the petitioner at their house at Mohali saying that it contained cash amount of Rs.25 lacs. Statement of consent divorce was given on 19.12.1997 and the divorce petition was allowed by the Court of learned District Judge, Ropar. After divorce the petitioner and respondent No.2 returned to their house at Mohali. The petitioner on return asked respondent No.2 for the brief case containing cash of Rs.25 lacs. However, respondent No.2 did not give her the amount and misappropriated the same. Thereafter, respondent No.2 brought his wife Malligeswari and children to live in his house. He forcibly took the children from the petitioner and entrusted them to the care of his wife Malligeswari which was against the order of the Court. In this manner, respondent No.2 had completely ruined the life of the petitioner. Therefore, it was prayed that a case be registered. FIR for the offences under Sections 420, 406, 498-A, 376, 494 read with Section 120-B IPC was registered against five accused including respondent No.2 at Police Station Mohali. However, vide order dated 16.1.2002 passed by the learned Sessions Judge, Ropar, the other four accused were discharged. Charge was framed against Kamaljit Singh (respondent No.2) for the offences under Sections 406, 498-A and 495 IPC. The prosecution in order to prove its case examined as many as 12 witnesses, besides, tendered documents in evidence. The statement of respondent No.2 in terms of Section 313 of the Code of Criminal Procedure (‘Cr.P.C.’–for short) was recorded. The incriminating evidence appearing against respondent No.2 was put to him. The petitioner denied the same. The learned trial Court considered the 4 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 question whether on 1.7.1990, the accused (respondent No.2) being entrusted with certain property i.e. dowry articles committed criminal breach of trust and whether during the said period he subjected the petitioner to cruelty with an intention to meet the unlawful demands of respondent No.2 as also whether respondent No.2 had married the petitioner by concealing the fact from her that he was already married. After considering the evidence and material on record, respondent No.2 has been acquitted by the learned trial Magistrate vide order dated 10.9.2005 which is assailed by the petitioner who is the complainant. Along with the criminal revision petition, Criminal Misc. No.68470 of 2006 has been filed seeking condonation of delay of 215 days in filing the revision petition. It is submitted that counsel for the petitioner had prepared the case file and handed it over to his Clerk for filing the same. However, the Clerk of the counsel had put the case file in the decided cases and after a long time the brief was traced. In this manner, delay had occurred in the filing of the revision petition. Notice of motion was issued on 17.4.2007. Learned counsel for the parties were heard on the application seeking condonation of delay. According to the learned counsel for the petitioner delay in filing the petition occurred as the case file got mixed up with the decided cases in his office. Affidavit of Joginder Singh, who is working as a Clerk for learned counsel for the petitioner has been filed. It is stated that the Clerk had put the case file amongst the decided cases which was traced out after a long time. In this manner, the delay had occurred. Learned counsel for the respondent No.2, has however, opposed the prayer for condoning the delay. It is submitted that the reason given for seeking condonation of delay is not tenable. It is well known that where technical considerations and cause of substantial justice are pitted against each other, the cause of 5 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 substantial justice is to be preferred for no person can claim a vested right in injustice being done because of a non-deliberate act of delay in filing the revision petition. Besides, a litigant does not stand to gain by resorting to delay in filing a petition. In the circumstances, the application seeking condonation of delay is liable to be allowed and is accordingly allowed. Learned counsel for the parties have been heard on the merits of the revision. Learned counsel for the petitioner has submitted that the learned trial Magistrate has erred in acquitting respondent No.2 on the ground that the marriage certificate issued by the authorities at Singapore regarding the factum of marriage of respondent No.2 with Malligeswari on 9.11.1989 has not been proved. Besides, the learned trial Magistrate also held that Section 495 IPC is not attracted as the second wife cannot file a complaint. Besides, it is submitted that respondent No.2 was also liable to be charged under Section 420 IPC as well. It is also submitted that in the decree of divorce that was granted it was held that the petitioner shall be allowed to meet her children and also take them with her, however, respondent No.2 is not allowing the petitioner to even meet her children leave alone to take them out. In response, learned counsel for the State and respondent No.2 have submitted that the learned trial Magistrate has recorded cogent and convincing reasons for acquitting respondent No.2 which do not call for or warrant any interference by this Court. I have given my thoughtful consideration to the contentions of the learned counsel for the parties. The primary grouse of the petitioner is that at the time of solemnization of the marriage between the petitioner and respondent No.2 on 1.7.1990, respondent No.2 was already married with one Malligeswari at Singapore. The petitioner 6 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 produced on record the marriage certificate issued on 21.11.2000 by the authorities at Singapore. Learned counsel appearing for the petitioner has submitted that the marriage certificate being a valid document and even Gurmeet Singh Chauhan, DSP, Rajpura (PW-12) having deposed about the marriage by cogent and convincing evidence, the learned trial Magistrate gravely erred in not accepting the earlier marriage between respondent No.2 and Malligeswari to be admitted. Gurmeet Singh Chauhan, DSP Rajpura (PW-12) stated that in 2001 he was posted as Superintendent of Police, Mohali. An application was received by him from the complainant (petitioner) for proper investigation of the case. She presented a copy of the marriage certificate between Kamaljit Singh Grewal (respondent No.2) and Malligeswari, daughter of Krishna Raj at Singapore. Gurmeet Singh Chauhan (PW-12) contacted the office of Registrar of Marriages at Singapore on telephone. A FAX from his side was demanded. Then a returned FAX was received from Singapore which was marked as PW- 12/A. The names of the parties between whom the marriage was solemnized was asked for. It was sent to the Registrar of Marriages at Singapore. Thereafter, a FAX message was received from the Registrar of Marriages at Singapore addressed to Gurmeet Singh Chauhan (PW-12) which is marked as PW-12/B. In terms of the FAX messages marriage between Kamaljit Singh and Malligeswari was solemnized and registered with the Registrar of Marriages on 9.11.1989 vide marriage certificate No.M-436671. Thereafter, the marriage certificate mark-D was received in the office of Gurmeet Singh Chauhan from the office of the Registrar of Marriages, Singapore bearing No.20125 and entry No.M-436671. As per the inquiry conducted by Gurmeet Singh Chauhan (PW-12) the then SP, Mohali, he verified that the marriage between Kamaljit Singh (respondent No.2) and Malligeswari was solemnized at Singapore on 9.11.1989 as per 7 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 record received from Singapore. In cross examination, he (PW-12) stated that as the document in question had been prepared in a foreign country, he could not say whether it was valid or not. He also stated as correct that he cannot directly contact the office in foreign country and it could only be through the Embassy. Therefore, his (PW 12’s) deposition is not of much significance. Insofar as the offence under Section 495 IPC is concerned, it is enjoined that whoever commits the offence of marrying again during the life time of husband or wife by concealing the same from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. The basic ingredient of the offence under Section 495 IPC is the concealment of fact of the earlier marriage. However, in the present case the learned trial Magistrate has held the factum of the earlier marriage between Kamaljit Singh (respondent No.2) with Malligeswari is held to be not proved. Indeed the documents and information have been received by Gurmeet Singh Chauhan (PW-12) the then Superintendent of Police, Mohali by FAX messages from the authorities at Singapore. However, the documents that have been placed on record have not been exhibited and, therefore, not proved in accordance with the mode of proving documents. Therefore, the first marriage between Kamaljit Singh (respondent No.2) and Malligeswari is not shown to be established or proved. As regards the other charges, it may be noticed that the marriage between the petitioner and respondent No.2 has been dissolved by judgment and order dated 19.12.1997 (Ex.PW9/A) passed by the learned District Judge, Ropar. The said decree dissolving the marriage between the petitioner and respondent No.2 was passed by mutual consent in terms of Section 13-B of the Hindu Marriage Act, 8 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 1955. A decree of a matrimonial Court is a judgment in rem in terms of Section 41 of the Indian Evidence Act. The same having been acted upon and the parties settling their dispute by mutual consent it cannot be said that respondent No.2 is now liable to be prosecuted for the offences under Sections 406 and 498-A IPC. In the proceedings under Section 13-B of the Hindu Marriage Act, the petitioner had stated that nothing was due towards Kamaljit Singh (respondent No.2). There is also an affidavit Ex.D-1 of the complainant which was given by her in the divorce proceedings wherein she had stated that she received her Streedhana and other dowry articles from respondent No.2. The decree of mutual consent having been passed on the statement of the parties which were recorded and contained the terms of the settlement reached at in proceedings in Court would entail that the compromise was lawfully entered into and the order passed was valid as to its genuineness. In case the same is to be assailed, the proper procedure would be to seek the setting aside of the said decree. A decree of a matrimonial Court having been validly passed it cannot be said that it was obtained by keeping the petitioner in the dark. Such a decree can be shown to have been delivered by a Court not competent to deliver it or that it was obtained by fraud or collusion which is not the case of the petitioner. The decree between the parties granting divorce by mutual consent having been validly passed by a Court of competent jurisdiction, the petitioner cannot in the present case say that the same was passed contrary to the facts as were pleaded. The FIR in the case was registered on 18.12.2000 and the decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act was passed on 19.12.1997. Therefore, the charges for the offences under Sections 406 and 498-A IPC also have rightly been held to be not made out. 9 Criminal Misc. No.68470 of 2006 & Criminal Revision No.2238 of 2006 No charges for the offence under Section 420 IPC was framed. There is no evidence even in this regard on the record. Neither has any such evidence been referred to by the learned counsel for the petitioner. Therefore, it cannot be said at this stage that respondent No.2 committed an offence under Section 420 IPC after he has been acquitted of the other charges. As regards the contention of the learned counsel for the petitioner that respondent No.2 in not complying with the decree of mutual consent, inasmuch as, he is not letting the petitioner meet her children, the same is not to be gone into in the criminal revision petition and the petitioner may avail her remedy for enforcement of the decree in accordance with law. For the foregoing reasons, there is no merit in this petition. Accordingly, while allowing the Criminal Misc. No.68470 of 2006 seeking condonation of delay, the criminal revision petition is dismissed. (S.S. SARON) JUDGE February 25, 2009 *hsp*