Criminal Misc. No. M-28180 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-28180 of 2009 Date of Decision: 25.03.2010 1. Babita d/o Gobind Ram; 2. Gobind Ram son of Amrit Lal Dass; 3. Amrit Lal son of Sh. Chankanda Dass; 4. Sunny son of Gobind Ram; 5. Aashu son of Gobind Ram; all residents of H. No. 1117/25, Patel Nagar, Rohtak, District Rohtak. ... Petitioners Versus 1. State of Haryana. 2. Vijay Kumar son of Ainshi Lal r/o Barrack No. 2, H. No. 16, Gandhi Camp, Rohtak, District Rohtak. ...Respondents 3. Sunil Kumar son of Sh. Som Nath; 4. Som Nath son of Brij Lal; 5. Sudesh Rani wife of Som Nath; all residents of Gali No. 1, Jawala Nagar, Ambedkar Park, Near Shamshan Ghat, Delhi. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rakesh Nehra, Advocate, for the petitioners. Mr. Sandeep Mann, Sr. DAG, Haryana, for respondent No. 1 – State. Ms. Reetika Swarup, Advocate, for respondent No. 2. Criminal Misc. No. M-28180 of 2009 2 SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Criminal Complaint No. 192 of 2008, dated 16.04.08, titled as, 'Vijay Kumar Vs. Sunil Kumar and others', pending in the Court of Judicial Magistrate 1st Class, Rohtak, the summoning order dated 08.01.09, passed by the Judicial Magistrate 1st Class, Rohtak, vide which, the petitioners, were summoned, to face trial, under Section 494 read with Section 109 IPC, and all the subsequent proceedings, arising out of the same, has been filed by the petitioners. 2. The facts, in brief, are that, the complainant/respondent No. 2, filed a petition, under Section 9 of the Hindu Marriage Act, for restitution of Conjugal Rights, against Babita, petitioner No. 1, which was decreed, in his favour, by the Court of Additional District Judge, Rohtak, vide order dated 21.02.07, holding that, they were the husband and wife. It was stated that, soon after the marriage, petitioner No. 1, started filing false cases, against the complainant, under the pressure of her family members, and also refused to live with him. It was further stated that, right from the very beginning, the family members of petitioner No. 1, were threatening the complainant, to compromise the matter, else they would marry her with some other person. It was further stated that, in the month of February, 2008, the complainant and his family members, came to know, that petitioner No. 1, had performed marriage with Sunil Kumar son of Som Nath, resident of Gali No. 1, Jawala Nagar, Delhi, respondent No. 3. It was further stated that, petitioners No. 2 Criminal Misc. No. M-28180 of 2009 3 to 5 and respondents No. 4 and 5, fully supported and cooperated petitioner No. 1, in performing the second marriage, during the subsistence of her first marriage with respondent No. 3. It was further stated that the said marriage, was attended, by Kamal Goyal and Rajender Goyal sons of Rishi Kumar Goyal, residents of H. No. 54, Street No. 13, Tagore Gali, Brahmpuri, Delhi. It was further stated that, at the relevant time, Kamal Goyal and Rajender Goyal, were informed, by the accused, that petitioner No. 1, had ended her relation with the complainant, and, as such, was performing the second marriage with respondent No. 3. It was further stated that, when the complainant, came to know about the same, he went, to the house of the parents of petitioner No. 1, who used an abusive language against him and told that he had no concern with their daughter. It was further stated that, thereafter, the complainant, kept on trying to know about the whereabouts of petitioner No. 1, but in vain. It was further stated that, on 16.03.08, the accused, visited the house of the paternal aunt (Bua) of the complainant, and informed her, that they had performed the second marriage of Babita with Sunil Kumar, and, as such, she being a mature lady, should persuade the complainant, to compromise the matter, with them. It was further stated that, when his (complainant's) paternal aunt, apprised him about the same, he went, to the house of respondent No. 3, at Jawala Nagar, Ambedkar Park, Delhi, where he saw Babita, residing with him, as his wife. Left with no alternative, the aforesaid complaint was filed. Criminal Misc. No. M-28180 of 2009 4 3. After recording the preliminary evidence, the trial Court, summoned the accused, to face trial, for the offences, punishable under Sections 494 and 19 IPC. 4. Feeling aggrieved, the instant petition, has been filed, by the petitioners. 5. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 6. The Counsel for the petitioners, submitted that, a case, under Sections 363 and 366 IPC, was registered, against the complainant/respondent No. 2, for kidnapping Babita, one of the petitioners, with an intent, to seduce her, to illicit intercourse. He further submitted that, ultimately, the complainant/respondent No. 2, was acquitted, in that case. He further submitted that Babita, never performed marriage with the complainant/respondent No. 2. He further submitted that Vijay Kumar, respondent No. 2, filed a petition, under Section 9 of the Hindu Marriage Act, against Babita, in which, the latter, denied her marriage with him, but, ultimately, that petition, was allowed, by the Court of District Judge. He further submitted that, the operation of that judgement, was stayed, by this Court. He further submitted that the complainant/respondent No. 2, filed a false complaint, under Section 494, against her, and petitioners No. 2 to 5, on the ground, that she performed marriage with another person, during the subsistence of her first marriage, and, petitioners No. 2 to 5, abetted the commission of crime. He further submitted that the complaint, had been filed, just with a view, Criminal Misc. No. M-28180 of 2009 5 to take revenge, by the complainant. He further submitted that the Court of Judicial Magistrate 1st Class, Rohtak, took into consideration, the order, passed in the petition, under Section 9 of the Hindu Marriage Act, by the Court of District Judge, for summoning the petitioners, as accused, though, the operation thereof, had been stayed by this Court. He further submitted that the complaint and the subsequent proceedings, arising out of the same, being the abuse of the process of Court and law, are liable to be quashed. 7. On the other hand, the Counsel for respondent No. 2, submitted that right from the very beginning, the case of Vijay Kumar, complainant/respondent No. 2, was that, he performed marriage with Babita. He further submitted that, in the criminal case, the Court, also took into consideration, this aspect of the matter and ultimately acquitted respondent No. 2. He further submitted that Annexure R2/3, a petition, under Section 13 of the Hindu Marriage Act, seeking divorce, has already been filed, by Babita, against respondent No. 2, and, in para No. 3 thereof, she admitted, that she is his legally wedded wife. They further submitted that, under these circumstances, it could not be said, that Babita, is not the legally wedded wife of Vijay Kumar, respondent No. 2. They further submitted that, since Babita, performed marriage with another person, during the subsistence of her first marriage, the complaint, was filed, against the petitioners. They further submitted that the Court below, also passed a legal and valid order, summoning the Criminal Misc. No. M-28180 of 2009 6 petitioners, as accused. 8. The Counsel for the petitioners, in reply, submitted that, no petition, under Section 13 of the Hindu Marriage Act (Annexure R2/3), was filed by Babita. 9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it 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, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Criminal Misc. No. M-28180 of 2009 7 Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1)Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2)Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the Criminal Misc. No. M-28180 of 2009 8 commission of any offence, and make out a case against the accused. 4)Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an Criminal Misc. No. M-28180 of 2009 9 ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 10. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. At the time of deciding the petition, under Section 482 Cr.P.C., this Court, cannot go into the merits of the case. Any probable defence, which may be available, to the petitioners, can be taken by them, during the trial of the case. Such a probable defence, cannot be taken into consideration, by this Court, at the time of deciding the petition, under Section 482 Cr.P.C. R2/3, is a copy of the petition, filed by Babita, against Vijay Kumar, respondent No. 2, wherein, she admitted, that she is his legally wedded wife. Whether this petition, was filed, by Babita, or not, is a question, which relates to the disputed facts, and can only be finally determined, during the course of trial. In the face of such a document, Babita, could not deny her marriage with Vijay Kumar, respondent No. 2. Since, she allegedly performed second marriage Criminal Misc. No. M-28180 of 2009 10 with another person, during the subsistence of her first marriage, and petitioners No. 2 to 5, allegedly abetted her, it could not be said, at this stage, that the complaint, was filed, just with a view, to take revenge. The order, passed by the trial Court, summoning the petitioners, for the offences, punishable under Sections 494 and 109 IPC, therefore, cannot be said to be illegal. The complaint and the summoning order, as also the subsequent proceedings, arising out of the same, are, thus, not liable to be quashed. 11. For the reasons recorded above, Criminal Misc. No. M-28180 of 2009, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 12. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately. 25.03.2010 (SHAM SUNDER) Amodh JUDGE